Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Pre-Effective Amendment to Registration Statement HTML 155K
(General Form)
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 39K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 157K
13: EX-10.10 Material Contract HTML 541K
14: EX-10.41(A) Material Contract HTML 294K
15: EX-10.41(B) Material Contract HTML 168K
16: EX-10.41(C) Material Contract HTML 105K
17: EX-10.42 Material Contract HTML 490K
18: EX-10.44(A) Material Contract HTML 157K
19: EX-10.44(B) Material Contract HTML 69K
20: EX-10.44(C) Material Contract HTML 41K
21: EX-10.45 Material Contract HTML 59K
4: EX-10.5(B) Material Contract HTML 675K
5: EX-10.6(A) Material Contract HTML 307K
6: EX-10.6(B) Material Contract HTML 162K
7: EX-10.6(C) Material Contract HTML 117K
8: EX-10.7(A) Material Contract HTML 492K
9: EX-10.7(B) Material Contract HTML 32K
10: EX-10.8(A) Material Contract HTML 577K
11: EX-10.8(B) Material Contract HTML 148K
12: EX-10.9 Material Contract HTML 455K
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED
PORTIONS OF THIS AGREEMENT.
THE REDACTIONS ARE INDICATED WITH THREE ASTERISKS (“***”). A COMPLETE VERSION
OF THIS AGREEMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
Startup and Commissioning; Commercial
Operation; Acceptance
5
ARTICLE 9.
Inspections; Work at the Site
7
ARTICLE 10.
Manner of Performance
8
ARTICLE 11.
Price
9
ARTICLE 12.
Payment Schedule
9
ARTICLE 13.
Changes
11
ARTICLE 14.
Spare Parts and Consumables
12
ARTICLE 15.
Title and Risk of Loss
12
ARTICLE 16.
Warranty
13
ARTICLE 17.
Delays in Shipment and Commercial Operation
15
ARTICLE 18.
Power Curve Guarantee
16
ARTICLE 19.
Sound Level
18
ARTICLE 20.
Suspension
18
ARTICLE 21.
Termination
18
ARTICLE 22.
Excusable Delays
20
ARTICLE 23.
Indemnity
21
ARTICLE 24.
Limitations of Liability
23
i
ARTICLE 25.
Insurance
24
ARTICLE 26.
Taxes
27
ARTICLE 27.
Intellectual Property
27
ARTICLE 28.
Software License
28
ARTICLE 29.
Proprietary Information
30
ARTICLE 30.
Assignment
32
ARTICLE 31.
Representations and Warranties
33
ARTICLE 32.
Governing Law; Disputes
35
ARTICLE 33.
Miscellaneous
36
Schedule
I – Definitions
List
of Attachments:
Attachment
1 – Description of Projects and Scheduled Major Component Shipment Dates
Attachment
2 – Scope of Work and Options
Attachment
3 – Payment Schedule
Attachment
4 – Performance Schedule
Attachment
5 – Intentionally Left Blank
Attachment
6 – Power Curve Liquidated Damages
Attachment
7 – Termination Payment Schedule
List
of Exhibits:
Exhibit A
– Form of Purchase Order
Exhibit B
– Intentionally Left Blank
Exhibit C
– Intentionally Left Blank
Exhibit D
– Intentionally Left Blank
Exhibit E-1/E-2
– Form of Lien Waiver/(Notarized)
List
of Appendices:
Appendix
A – Technical Specifications
ii
MASTER CONTRACT
FOR THE SALE OF POWER GENERATION EQUIPMENT
AND RELATED SERVICES
THIS
AGREEMENT (this “Contract”)
is entered into as of July 3 , 2008, by and
between:
General Electric Company, a corporation organized and existing under the laws of the State of
New York, U.S.A., with a place of business at One River Road, Schenectady, NewYork12345, U.S.A. (the “Seller”); and
Noble Environmental Power 2010 Equipment Co., LLC, a limited liability company organized and
existing under the laws of Delaware, with a principal place of business at 8
Railroad Avenue, Second Floor, Suite 8, Essex, CT06426, U.S.A. (the “Buyer”).
The
Buyer and the Seller are referred to herein individually as a “Party”
and collectively as the “Parties”.
Recitals
WHEREAS, the Seller is engaged in the business of
manufacturing, delivering, and commissioning wind power generation equipment
and providing services related thereto;
WHEREAS, the Buyer intends to develop certain wind
energy projects, as
described in further detail in Attachment 1, and/or other wind energy
projects to be located in the contiguous 48 United States (each individually, a
“Project” and collectively, the “Projects”);
WHEREAS, the Seller desires to sell, and the Buyer
desires to purchase, power generation equipment and related services, each as
described in further detail in Attachment 2; and
WHEREAS, the Parties desire to enter into a master
contract for the sale of wind power generation equipment and related services
pursuant to which the Buyer shall issue a separate turbine purchase order for
each wind energy project.
1
Agreement
NOW,
THEREFORE, in
consideration of the promises and covenants stated herein, the Parties agree as
follows:
ARTICLE 1. Effectiveness
and Term
This
Contract shall become effective when (i) it has been signed by both
Parties; and (ii) the Seller receives the initial payment in
accordance with the Payment Schedule (the “Effective Date”) and shall
continue to be in effect until expiration of the Warranty Period, as extended
pursuant to Section 16.3 and/or 16.5, with respect to the last Unit purchased
under this Contract.
ARTICLE 2. Purchase
and Sale; Purchase Orders
2.1 Purchase and Sale.
The
Buyer shall purchase and receive from the Seller, and the Seller shall sell and
deliver to the Buyer, the Equipment and Services as more fully described in Attachment
2 (together, the “Work”), subject to the terms and conditions of
this Contract.
2.2 Purchase Order
Procedure. The Parties have in good faith identified
the shipment dates of the Equipment for the Projects (the “Scheduled Major
Component Shipment Dates”) in Attachment 1 hereto. The Parties shall consult on a monthly basis
regarding the progress of the Projects and the availability of the Seller’s
facilities for the manufacture of the Equipment. No later than seven (7) months prior to
first Unit shipment for each Project, the Buyer shall issue and submit to the
Seller a Purchase Order for each Project substantially in the form of Exhibit A
(each, a “Purchase Order” or “PO”).
2.3 Options.
The
Buyer shall have the right to exercise the option to purchase the additional
Equipment and/or Services described in Table 1A and Table 2 attached to this Contract in Attachment 2
(the “Options”) on or before the exercise dates stated therein. If any Option is exercised, the Contract
Price, the Purchase Order Price and the Payment Schedule shall be adjusted as
set forth in Section 13.1 and Attachments 2 and 3.
ARTICLE 3. Projects
The Buyer shall make a good
faith prediction of projects in written form to the Seller within 270 days of
the Scheduled Delivery Date of the first Unit, which the Buyer believes will be
developed during the term of this Contract and the Buyer makes no guarantee
that any particular Project will be successfully developed. Notwithstanding the foregoing, the Buyer
shall purchase a minimum aggregate of three hundred thirty three (333) Units
from the Seller.
ARTICLE 4. Shipment
and Delivery
4.1 Delivery. In the event that Seller provides transportation
services in accordance with Article 5 Section 5.2: the Seller shall
transport the Equipment DDP Closest Common Carrier Point to the Site or storage
location in the event of Shipment to Storage (“Deliver”) as soon as reasonably
possible after Shipment, unless otherwise placed into storage in accordance
with Article 6. Additionally, (i) the
Seller shall ship the remaining equipment within *** days after the applicable
Scheduled Major
2
Component Shipment Date and (ii) Seller
shall not Ship any Major Components more than *** (***) days in advance of the
applicable Scheduled Major Component Shipment Date without providing the Buyer
with advance notice and obtaining the Buyer’s prior consent.
4.2 Shipment. In the event that Buyer or
Third Party provides transportation services in accordance with Article 5 Section 5.3,
Seller shall Ship the Equipment, unless otherwise placed into storage in
accordance with Article 6, (i) FCA
Factory or Seller’s Facility for Equipment manufactured in the United States or
Canada, and (ii)DDP US Port of Import for equipment manufactured outside of the
United States or Canada (Incoterms 2000).
The Seller shall Ship the Major Components of each Unit in the quantity
and on or before each Scheduled Major Component Shipment Date set forth in Attachment
1; provided, however, that the Seller shall
not Ship any Major Components more than *** (***) days in advance of the
applicable Scheduled Major Component Shipment Date without providing the Buyer
with advance notice and obtaining the Buyer’s prior consent. The Seller shall ship the remaining
Equipment of each relevant Unit within *** (***) Business Days after the
applicable Scheduled Major Component Shipment Date as set forth in Attachment
1.
ARTICLE 5. Transportation
5.1 General. The Buyer shall specify in each Purchase Order
whether the Buyer wishes the Seller to transport the Equipment to the Closest
Common Carrier Point to the Site or whether the Buyer has made other
arrangements for transportation.
5.2 Transportation by the
Seller. If the Purchase Order states
that the Seller is to transport the Equipment described in the Purchase Order,
notwithstanding the allocation of responsibility for loading in the definition
of “Ship” in Schedule 1, the Seller shall load (at no additional charge) and
Deliver the Equipment to the Closest Common Carrier Point to the Site as
promptly as reasonably possible after the applicable Scheduled Major Component
Shipment Date and shall charge the Buyer a fee for the transportation of that
Equipment (the “TransportationCharge”). The Transportation Charge shall be theamount
equal to the actual direct costs of transporting that Equipment (excluding
overhead and other indirect charges) plus *** per cent (***%) of that
amount. All of the Seller’s overhead and
indirect charges, including, but not limited to, the costs of management,
organization and logistics of the transportation and delivery, shall be
included in the *** per cent (***%). Within 120 days of any Scheduled Major
Component Shipment Date, Buyer may notify the Seller of a change in the Site
within the 48 contiguous United States and the Seller shall accept such Site
change subject to the
performance of a Site Specific Loads Analysis with respect to the new Site and
in accordance with Article 13, and provided further, that
the Transportation Charge and Project Support Services set forth in Attachment
2 hereto to be paid by the Buyer for the transport to the new location
shall be re-calculated in accordance with Article 5.
5.3 Transportation by the
Buyer or Third Party. If the
Purchase Order states that the Buyer or a third party is to transport the
Equipment described in the Purchase Order, the Seller shall then have no
obligation to transport the Equipment described in the Purchase Order and shall
not charge the Buyer a Transportation Charge for such Equipment: provided, however, that
notwithstanding the allocation of responsibility for loading in the definition
of “Ship” in Schedule 1, the Seller shall load (at no
3
additional charge) the
Equipment on any collecting transport provided by the Buyer or such third party
if such Equipment is being shipped from the
Seller’s warehouse, port of import or manufacturing facility. For Major Components of the Equipment
manufactured in Canada and transported by the Buyer or Third Party, the Buyer
shall transport such Major Components into the US within 30 days of receipt of
such Major Components. Seller shall not
be the exporter of record for such Major Components but will clear the item for
export.
ARTICLE 6.
Shipment to Storage
If the Seller is ready to Ship any Major Component
to the Buyer prior to the Scheduled Major Component Shipment Date set forth in Attachment
1 but the Seller cannot ship a Major Component to the Buyer within five (5) days
after the applicable Scheduled Major Component Shipment Date due solely to any
cause not attributable to the Seller, the Seller may ship such Major Component
to storage. If such Major Component is
placed in storage, including storage at the facility where such Major Component
is manufactured, the following conditions shall apply: (a) title and risk of loss shall
thereupon pass to the Buyer if it had not already passed; (b) any amounts
otherwise payable to the Seller upon Delivery or Shipment shall be payable upon
presentation of the Seller’s invoice(s) and certification of cause for
storage; (c) all reasonable expenses incurred by the Seller in connection
with such storage, such as for preparation for and placement into storage,
handling, inspection, preservation, purchase of shipping fixtures, storage,
removal charges and any taxes relating thereto shall be payable by the Buyer
upon submission of the Seller’s invoice(s) and reasonable supporting
documentation; (d) the Services provided herein shall be subsequently
changed to the rate prevailing at the time of actual use and the Buyer shall
pay the net change in the rate; and (e) when the Buyer notifies the Seller
that it is ready to accept the Major Component and upon payment of any amounts
due hereunder with respect to such Major Component, the Seller shall resume
Shipment of such Major Component.
ARTICLE 7. Erection
7.1 Erection by Buyer.
The Buyer shall erect each Unit, or cause each Unit to be erected,
substantially in accordance with the specifications set forth in Appendix A. The Buyer shall notify the Seller when each
Unit achieves Mechanical Completion.
7.2 Special Installation
Tools. The Seller shall lend to the Buyer, at no
cost to the Buyer, special installation tools for the Buyer’s use only in
connection with the installation of the Equipment. The Seller shall supply the special
installation tools to the Site at the same time the relevant Equipment for each
Unit is delivered. Upon the Seller’s
delivery of such special installation tools, the Buyer shall inspect such tools
to confirm that they are in good condition and working order. The Buyer acknowledges and agrees that all of
the special installation tools provided by the Seller pursuant to this Section 7.2
are owned by the Seller. The Buyer shall
(a) return the special installation tools promptly after installation of
the final Unit to the Seller in the same condition as received, except for
normal wear and tear; (b) pack and load special installation tools at the
Buyer’s cost; and (c) ship such tools to locations designated by the
Seller at the Seller’s cost. The Buyer shall use such special installation
tools at its own risk and in accordance with the Installation Manual and shall
use reasonable care in storing, handling and using such special installation
tools. If any of the special
installation tools is damaged or destroyed during the period in which the Buyer
possesses it pursuant to this Contract, then the Buyer shall repair or replace
such damaged or destroyed tools at the Buyer’s expense.
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7.3 Technical
Representatives. The Seller shall provide
on-Site technical advisors starting from the Delivery of the first Major
Component of the first Unit onsite through the unloading and installation of
the last Major Component of the last Unit at a minimum rate of five (5) Units
per week to a maximum rate of fifteen (15) Units per week unless otherwise
indicated in the Purchase Order, to advise the Buyer with respect to the
Buyer’s compliance with the Seller’s Installation Manual during such unloading
and installation and support and coordinate all customer requirements during
pre-construction through Final Acceptance of each Project, on a
project-by-project basis. The Parties
acknowledge and agree that the sole purpose of such on-Site advisors is to
provide advice and guidance respecting the installation of the Units and to
observe the same.
7.4 Shipping Fixtures. If required, the Seller shall lend
to the Buyer, at no cost to the Buyer, shipping fixtures for the Buyer’s use
only in connection with the installation of the Equipment. The Seller shall supply the shipping fixtures
to the Site at the same time the relevant Equipment for each Unit is
delivered. The Seller is not obligated
to supply any specific type, brand, make or model of shipping fixture. Upon the Seller’s delivery of any shipping
fixtures, the Buyer shall inspect such shipping fixtures to confirm that they
are in good condition and working order.
The Buyer acknowledges and agrees that all of the shipping fixtures
provided by the Seller pursuant to this Section 7.4 are owned by the
Seller. The Buyer shall have the right
to use a maximum of forty-five (45) such
shipping fixtures (total for all Sites) for an unlimited amount of time after
actual Shipment. If the Seller is
requested to provide such additional shipping fixtures for the Buyer’s use, the
Buyer shall have the right to keep such
additional shipping fixtures for a period of 30 days after actual
Shipment. The Buyer must then make
available for pickup by the Seller the actual number of shipping fixtures
(exceeding forty-five (45)) in the Buyer’s possession which were provided
pursuant to this Section 7.4 (provided that up to one hundred eighty (180)
sets of root and tip stands have been provided by the Seller in order to store blades once the shipping fixtures
have been removed). The Buyer shall
notify the Seller in writing that the shipping
fixtures are ready for pickup,
and the Seller shall provide for transportation. If the Buyer fails to make such shipping
fixtures available for pickup within 30 days after actual Shipment, the Buyer
shall pay to the Seller $1000/day/fixture until such shipping fixtures are made available for pickup. The Buyer shall pack such shipping fixtures
in containers and load them onto transport vehicles provided by the
Seller. The Buyer shall have the right
to keep the root and tip stands for a period of up to 120 days after
receipt. The Buyer must then either
(a) make the root and tip stands available for pickup by the Seller and
load them onto transport vehicles provided by the Seller or (b) purchase
the root and tip stands from the Seller.
If any of such additional shipping fixtures or root and tip stands are
damaged or destroyed during the period in which the Buyer possesses them
pursuant to this Contract, then the Buyer shall repair or replace such damaged
or destroyed shipping fixtures at the Buyer’s expense. The Buyer also understands and agrees that
the Seller will not be liable for any reason, including but not limited to, the
supply, misuse or failure of such shipping fixtures, and will not have any
right or claim against the Seller for injury, death or damages to the Buyer’s
personnel or property, or those of a third party, which may be caused by the
use, misuse, or failure of such shipping fixtures, except when such liability
is caused by, or such right or claim arises out of, any actions or omissions of
the Seller.
ARTICLE 8. Startup
and Commissioning; Commercial Operation; Acceptance
8.1 Startup and
Commissioning. When the Buyer provides the Seller notice
countersigned by the Seller that the Mechanical Completion of a Unit has been
achieved in the form of Section 8.1 of Appendix A(a “Mechanical
Completion Certificate”), the Seller shall Startup and Commission such Unit
in accordance with Appendix A on or before the dates established by the
Performance Schedule set forth in Attachment 4. If the Seller does not countersign or object
to any such Mechanical Completion
5
Certificate within *** (***) days after
receipt, such Mechanical Completion Certificate shall be deemed confirmed and
agreed to by the Seller on the date that such Mechanical Completion Certificate
was originally delivered to the Seller. The Buyer shall achieve Mechanical
Completion of the Units at the following rate: (a) *** (***) as a minimum
number of Units per week and (b) *** (***) as a maximum number of Units
per week; provided, however,
that the Buyer may modify either of such rates in accordance with Article 12.
If, after Seller’s mobilization for a Project at the Site, the Buyer delays the
Mechanical Completion of *** (***) *** Units for a cumulative total of ***
(***) hours or more for any reason other than an excusable event pursuant to Article 22
or suspension pursuant to Article 19, then (a) the Seller shall use
commercially reasonable efforts to minimize the impact of such delay on the
costs and delays it incurs as a result of such delay, (b) the performance
of the Seller’s obligations shall be equitably extended for a period of time
based upon the time lost as a result of such delay and the impact on the
Seller’s performance of the Work, and (c) the Buyer shall pay the Seller
within thirty (30) days after receipt of an invoice from the Seller a
reasonable price increase for additional labor incurred by the Seller solely as
a result of such delay in excess of the labor the Seller would otherwise have
incurred based on the published rates for Technical Advisory Services in effect
at the time of such delay.
8.2 Commercial Operation.
Each Unit will achieve Commercial Operation on the first date when each
of the following has occurred: (a) Mechanical Completion has occurred, (b) the
Field Commissioning and Acceptance Test (FCAT) and the Converter Commissioning
Test (CCT) have been completed in accordance with Appendix A, (c) the
Unit is safely generating electric power, and (d) the Seller has delivered
a certificate, including a Punch List (if required), in the form included in Section 8.2
of Appendix A (a “Turbine Completion Certificate”). Each Project will achieve Commercial
Operation when every Unit comprising such Project has achieved Commercial
Operation. If the Buyer agrees with such
Commercial Operation Certificate and the Punch List, the Buyer shall promptly
countersign such Commercial Operation Certificate. If the Buyer does not
countersign or object to any such Commercial Operation Certificate and/or Punch
List within twenty (20) days after receipt, such Commercial Operation
Certificate and/or Punch List shall be deemed confirmed and agreed to by the
Buyer on the date that such Commercial Operation Certificate and/or Punch List
was originally delivered to the Buyer.
If the Buyer provides timely notice that it disputes such Commercial
Operation Certificate, the Seller shall either (i) at its sole cost and
expense, immediately correct and/or remedy the defects, deficiencies and other
conditions so as to achieve Commercial Operation, or (ii) request that the
matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it
disputes the Punch List, the Seller shall either (A) modify the Punch
List, or (B) request that the matter be submitted to the dispute
resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as
necessary. Once the Punch List is
established, the Seller shall complete all items listed on the Punch List at
its sole cost and expense and to the Buyer’s satisfaction as promptly as
possible.
8.3 Use.
Upon Commercial Operation of a Project, the Buyer shall assume full
operational responsibility for such Project.
If the Buyer operates or directsthe operation
of a Unit for commercial purposes prior to the date of Commercial Operation,
the Unit will be deemed to have achieved Commercial Operation on the date of
the first such use.
8.4 [Intentionally omitted.]
8.5 Acceptance.
Each Unit will achieve Unit Acceptance on the date when each of the
following has occurred: (a) Commercial Operation of the Unit has been
achieved, (b) all Punch List items for the Unit have been completed, and (c) the
Work on the Unit has been completed in accordance with
6
the Contract.
Each Project will achieve Final Acceptance when (a) all Units
comprising such Project have achieved Unit Acceptance and (b) the Seller
has delivered to the Buyer a certificate for such Project in the form of Section 8.3
of Appendix A (an “Acceptance Certificate”). If the Buyer agrees with
such Acceptance Certificate, the Buyer shall promptly countersign such
Acceptance Certificate. If the Buyer does not countersign or object to such
Acceptance Certificate within twenty (20) days after receipt, such Acceptance
Certificate shall be deemed confirmed and agreed by the Buyer on the date that
such Acceptance Certificate was originally delivered to the Buyer. If the Buyer
provides timely notice that it disputes such Acceptance Certificate, the Seller
shall either (i) at its sole cost and expense, immediately correct and/or
remedy the defects, deficiencies and other conditions so as to achieve Project
Acceptance, or (ii) request that the matter be submitted to the dispute
resolution procedures set forth in Article 32.
8.6 Spare Parts and
Consumables. The Seller shall provide the Buyer with all
spare parts and consumables required for Startup and Commissioning of the
Seller’s Work at the Seller’s own cost and expense.
ARTICLE 9. Inspections;
Work at the Site
9.1 Inspections and Tests
at Seller’s Facilities. Upon the
submission of reasonable advance notice, the Buyer and/or its representative
shall be provided access to the Seller’s facilities during normal business
hours to obtain information on production progress and to make inspections of
manufacture, assembly and testing of the Equipment. Such access shall be limited to areas
relating to the manufacture, assembly and testing of the Equipment and shall be
subject to the Seller’s reasonable safety precautions; provided
however, that if work of a proprietary nature is being conducted in
any such area, the Seller shall limit the extent of the area or areas affected
by such work to the maximum extent possible and shall use all commercially
reasonable efforts to provide the Buyer with full access to such areas.
9.2 Inspections and Tests
at Suppliers’ Facilities. Upon the
submission of reasonable advance notice, the Seller shall make commercially
reasonable efforts to arrange for the Buyer’s access to Suppliers’ facilities
during normal business hours for the purposes described in Section 9.1.
9.3 Inspection Not
Acceptance. The Buyer’s inspection of the Equipment or
its failure to inspect shall not relieve the Seller of its obligation to
fulfill the requirements of this Contract, nor is it to be construed as
acceptance by the Buyer.
9.4 Hazardous Substances.
If during the performance by the Seller of the Work at the Site the
Seller encounters any Hazardous Substance at the Site which requires special
handling and/or disposal and which was not Released because of the actions or
omissions of the Seller, (a) the Buyer, at its own cost and expense, shall
promptly and properly remove and dispose of such Hazardous Substance so that the
Work may safely proceed, and (b) the Seller shall not be obligated to
commence or continue the Work until the Buyer causes any such Hazardous
Substance to be removed. If the Seller
produces, transports, or causes by its actions or omissions the Release of any
Hazardous Substance , Seller, at its own cost and expense, shall promptly and
properly remove and dispose of the Hazardous Substance so that the Work may
safely proceed.
9.5 Site Security.
During
the performance of the Work, the Seller shall comply with reasonable site
security requirements provided to the Seller by the Buyer.
7
9.6 Site Obligations.
Within the Seller’s scope of work defined herein, the Seller shall take
all actions reasonably necessary to protect any and all electric lines and
poles, telephone lines and poles, public roads, highways, waterways, railroads,
sewer lines, natural gas pipelines, drainage ditches, culverts, water wells, or
springs and any and all property of third parties from damage as a result of
performance of the Work and shall comply with the requirements of all
agreements providing the Buyer the right to use the Site. To the extent any such property is damaged in
the course of the performance of the Work and is attributable to the negligence
or willful misconduct of the Seller or its Subcontractor or Supplier, the
Seller shall, at its own cost and expense, rebuild, restore or replace such
damaged property.
9.7 Emergencies.
In the event of an emergency that endangers persons or property
resulting from the Seller’s performance of the Work, the Seller shall take such
action as may be reasonable and necessary to prevent, avoid or mitigate injury,
damage or loss and shall report such incidents as soon as possible to the
Buyer.
9.8 Other Contractors.
The Seller acknowledges that other contractors may be working at the
Site, and the Seller shall cooperate with and shall not unreasonably delay,
impede or otherwise impair the work of such contractors.
9.9 Access.
During any period in which the Seller is entitled to access to any Unit,
the Buyer shall ensure that: (a) the Seller will have reasonably unimpaired
access to all plant work areas, station cranes and similar equipment; provided, however, that the Seller shall not unreasonably
delay, impede or otherwise impair the activities of the Buyer or the Buyer’s
other contractors; and provided further
that the Seller shall comply with the Buyer’s and the Buyer’s other
contractors’ safety requirements; and (b) a copy of the control room log
is available to the Seller.
ARTICLE
10. Manner of Performance
10.1 Compliance with Laws.
The Seller shall comply with all applicable Laws governing the manner in
which it performs its obligations under this Contract.
10.2 Global Sourcing.
The Seller reserves the right in its discretion to obtain, source,
subcontract, manufacture, fabricate and assemble the Equipment and any
components and systems outside the United States; provided,
however, that the Seller shall adhere to the quality standards and
warranties of the Seller under the Contract in all cases irrespective of
source, and all sourcing shall be consistent with all applicable laws and
regulations; and provided, further, that the
Seller shall bear full responsibility for all cost increases that occur for
whatsoever reason as a result of the Seller’s decision to obtain, source,
subcontract, manufacture, fabricate, assemble, or ship the Equipment or any
components or systems outside the United States.
10.3 Subcontractors and
Suppliers. The Seller shall be responsible for the Work
and shall ensure that it conforms in all respects to the requirements of this
Contract, regardless of any failure of any of its Subcontractors or Suppliers
to perform and regardless of any disagreement between any of its Subcontractors
or Suppliers or between any of its Subcontractors or Suppliers and the Seller. The Buyer shall not be deemed to have any
contractual obligation to, or relationship with, any of the Seller’s
Subcontractor or Supplier by virtue of this Contract.
8
10.4 Export Controls.
In connection with this Contract, the Parties shall comply at all times
with all applicable export control laws and regulations of the U.S.
Government. The Buyer shall not, except
as such laws and regulations may expressly permit, make any disposition by way
of transshipment, re-export, diversion or otherwise, of U.S. origin goods and
technical data (including computer software), or the direct product thereof,
supplied by the Seller hereunder. The
obligations of the Parties to comply with all applicable export control laws
and regulations shall survive any termination of, or discharge of any other
obligations under, this Contract.
10.5 Weapons.
The Buyer hereby certifies that the Equipment, Services, technical data,
software or other information or assistance furnished by the Seller or its
Affiliates under this Contract will not be used in the design, development,
production, stockpiling or use of chemical, biological, or nuclear weapons
either by the Buyer or by any entity acting on the Buyer’s behalf.
ARTICLE
11. Price
11.1 Contract Price. In consideration of the Equipment and the
Services described in Attachment 2, the Buyer shall pay to the Seller
the fixed price of $*** (the “Contract Price”) in accordance with the
Payment Schedule and subject to the terms and conditions as set forth in this
Contract. Specific quantities and prices
shall be incorporated into each individual PO (the total of all such prices (as
multiplied by the relevant quantities) in each PO for a given Project, a “Purchase
Order Price”). The price of each Unit, including a pro-rata share of the
Services, special installation tools and shipping fixtures with respect to each
Unit (collectively, the “Unit Price”), is set forth in Attachment 2
hereto. The currency in which the
Contract Price, the Purchase Order Price or any other payments due under this
Contract are stated shall be the “Contract Currency.”
11.2 Other Adjustments.
The Contract Price and/or the Purchase Order Price shall be equitably
adjusted from time to time to account for changes indicated in a Change Order
in accordance with Section 13.1 or 13.3, as applicable.
11.3 Pricing Assumptions.
The Contract Price and each Purchase Order Price are based on the design
and manufacture of the Equipment and performance of Services in accordance
with: (a) those portions of the
codes and standards identified in Appendix A which the Parties agree are
applicable to the Equipment; (b) the applicable national Laws of the
country where the relevant Equipment is manufactured; (c) the ambient site
conditions (including temperature and wind conditions) identified in Appendix
A; (d) those site-specific environmental requirements (including those
governing noise emissions) identified in Appendix A; and (e) those
local Laws (including seismic and wind loading design requirements) which have
been identified in Appendix A; in each case as in effect on the date of
this Contract. For the avoidance of doubt, the Seller shall bear full
responsibility for any subsequent Change in Codes and Standards identified in Appendix
A or in applicable national Laws that affect the Seller’s manufacturing,
fabrication, production, assembly, shipping or transporting processes or
activities under this Contract.
ARTICLE
12. Payment Schedule
12.1 Seller Invoices.Payment
shall be made in accordance with the Payment Schedule; provided,
however, that for purposes of the Payment Schedule only, the
requirements of Section 8.2(c) shall be deemed fulfilled on the date
that is fifteen (15) days after the date the last Unit in a Project has
fulfilled the requirements of Sections 8.2(a) and (b) if the Unit has
not been able to safely generate
9
electric power solely as a result of
(a) lack of suitable wind, excessive wind speeds that prevent turbine
operation, or sustained on site hub height wind speeds in excess of 33 miles
per hour that prevent hub entry, or (b) the failure of the Buyer, the
Owner or any third party to provide interconnection or transmission capability. On or before the fifth (5th) day of each month, the Seller
shall provide the Buyer with an invoice for all Progress Payments (as so
designated on Attachment 3) that are due from the Buyer under this
Contract. For the remaining payments
reflected on Attachment 3, the Seller shall provide the Buyer with an
invoice at any time after completion of such milestone; provided,
however, that, if the Seller completes the milestone in advance of
the date indicated on Attachment 4 the Buyer shall not be required to
make such payment for such milestone more than thirty (30) days prior to the
date identified on Attachment 4. The Buyer shall pay the amount of each
invoice that is undisputed within thirty (30) days after receipt by wire
transfer of immediately available funds except as extended under the provisions
of Article 12.8. If the thirtieth
(30th) day is not a Business Day, the payment shall be due on the next
Business Day. Wire transfer instructions
shall be provided on each invoice. Late
payments shall be subject to an interest charge equal to the Default Rate at
that time from the date due until paid in full.
12.2 Lien Releases. The Seller shall provide the Buyer with
(a) a final, unconditional lien release in theform
attached hereto as Exhibit E-1
as each group of Units is commissioned together with the invoice for the
payment corresponding to the commissioning of each group of Units and
(b) a final, unconditional, notarized lien release for all of the Units
comprising each Project in the form attached hereto as Exhibit E-2 as the last group of Units comprising such
Project is commissioned together with the invoice for the payment corresponding
to the commissioning of such group of Units.
For the avoidance of doubt, the Buyer shall not be obligated to pay any
of the commissioning milestone invoices unless it has received the
corresponding lien releases.
12.3 Punch List Withholding.
If
the Seller presents a Punch List for any Project pursuant to Section 8.2,
the Buyer shall have the right to withhold one hundred fifty (150%) of the
total value of the items specified on such Punch List, as finalized under
Section 8.2, from its payment due and payable to the Seller under the
Payment Schedule until the date on which such items are fully completed to the
satisfaction of the Buyer.
12.4 Payment to
Subcontractors and Suppliers.The Seller shall indemnify and hold
harmless the Buyer from the Seller’s failure to promptly pay its Subcontractors
and Suppliers with respect to the Startup and Commissioning Work at the Site.
12.5 Buyer Invoices.
If at
any time the Seller owes any amount to the Buyer (including, without
limitation, payments pursuant to Sections 17.1, 17.2, 18.2 and 19.2), the Buyer
shall send the Seller an invoice for such amount. The Seller shall pay any amount of such
invoice that is undisputed within thirty (30) days after receipt by wire
transfer of immediately available funds.
If the thirtieth (30th) day is not a Business Day, the payment shall be due
on the next Business Day. Wire transfer
instructions shall be provided on each invoice.
Late payments shall be subject to an interest charge equal to the
Default Rate at that time from the date due until paid in full.
12.6 Disputed Payments.
Within
fifteen (15) calendar days after receipt of any invoice under this Contract,
the Party receiving such invoice may, by notice to the Party rendering the
invoice, dispute, in good faith, any amount set forth in such invoice; provided, however, that the disputing Party shall pay to the
other Party the undisputed portion of the invoiced amount when due. Any dispute relating to any amount of an
invoice that is not resolved by the Parties within fifteen (15) days after the
receipt of the
10
notice of such dispute shall be resolved as
provided in Article 32. If the dispute (or any portion thereof) is
resolved in favor of the disputing Party, the other Party shall, within five
(5) Business Days after the date of such resolution, pay to the disputing
Party amounts corresponding to such portion of the dispute that has been
resolved in favor of the disputing Party plus interest at the Default Rate on
such amounts from the date payable under the invoice to the date paid.
12.7 Payment or Use Not
Acceptance. No payment to the Seller or any use
of a Project by the Buyer shall constitute an acceptance of any of the
Equipment or Services furnished by the Seller, its Subcontractors or Suppliers
hereunder or shall relieve the Seller of any of its obligations or liabilities
under this Contract.
12.8Delay in
Payment due to Governmental Restrictions to Delivery to site by Buyer . If the Buyer elects to transport the equipment from the place of
manufacture or port of import, and, once the Buyer has take possession of the
Equipment and has removed the equipment from the place of manufacture or the
port of import , is then restricted by governmental order from delivering the
Equipment to the site due to road restriction, the payment due upon shipment
for those specifically delayed units will be extended from net 30 days to net
45 days. This extension of payment is
conditioned upon the Buyer giving the Seller notice of such restriction within
24 hours or one business day of Buyer becoming aware of its occurrence.
ARTICLE
13. Changes
13.1 Buyer-Initiated
Changes.
The Buyer shall have the right to
request that the Seller consider changes to the Equipment or the Services,
including the Options described in Section 2.3 and any other
modifications, alterations or additions.
If the Buyer wishes to request such a change, the Buyer shall notify the
Seller in writing. Within fifteen (15)
days after receipt of such notice (unless otherwise extended by mutual
agreement), the Seller shall advise the Buyer of the feasibility of the requested
change, any options for implementing the requested change, and the effect (if
any) of each option on the schedule and the Contract Price and/or the Purchase
Order Price. The Buyer may then submit
to the Seller a draft Change Order.
13.2 Seller-Initiated
Changes. If the Seller wishes to propose a change to
the Equipment or the Services, the Seller shall submit to the Buyer a draft
Change Order.
13.3 Changes in Law or
Changes in Codes and Standards. If any Change
in Law or Change in Codes and Standards requires a change to the Work that was
not otherwise caused by any failure or delay of the Party requesting the
change, either Party may propose a change by submitting a draft Change Order to
the other Party. The Parties acknowledge
that a Change Order shall be granted providing for an equitable adjustment to
the time to perform the Work and the Contract Price and/or the Purchase Order
Price based on the impacts of such Change in Law or Change in Codes and
Standards; provided, however, that if the Seller
reasonably determines that any change to the Equipment requested under this
Section 13.3 is not practicable, the Seller will so notify the Buyer, and
the Buyer may terminate this Contract in accordance with Section 22.1 or
may direct completion without change.
13.4 Contents of Draft
Change Order. The draft Change Order shall include:
(a) a technical description of the proposed change in such detail as the
Buyer may reasonably require; (b) a lump sum
11
firm price adjustment (increase or decrease)
in the Contract Price and/or the Purchase Order Price, if any, caused by the
proposed change and a payment schedule; and (c) all potential effect(s),
if any, on the Scheduled Major Component Shipment Dates set forth in Attachment
1, or any other schedule or dates for performance by the Seller hereunder,
caused by the proposed change.
13.5 Process for Concluding
Change Order. The Buyer shall within ten (10) days
after the date of receipt of the draft Change Order either approve or
disapprove the draft Change Order, in writing, or request additional time to
consider the draft Change Order. If the
Buyer approves the draft Change Order, the Buyer and the Seller shall then sign
the Change Order which shall operate as an amendment to this Contract.
13.6 Agreement Required.
Notwithstanding anything to the contrary in this Contract, all changes
shall be subject to mutual agreement of the Parties, and no Change Order shall
be effective until signed by both Parties.
Neither Party shall proceed with any requested change until the Change
Order has been signed by both Parties.
ARTICLE
14. Spare Parts and Consumables
14.1 Listing of Spare Parts
and Consumables.The Seller shall provide to the
Buyer a list of recommended spare parts, including any spare parts obtained
from equipment manufacturers and other commercial vendors relating to the Work,
and the price of each item. The prices
listed do not include the cost of delivery, insurance, sales taxes, customs,
duties, or other similar charges, all of which shall be the responsibility of
the Buyer. The Seller shall also provide
the Buyer with a schedule of all consumables required for the assembly,
erection, and installation of the Equipment.
14.2 Access to Spare Parts.
The Seller shall sell to the Buyer spare parts for the repair of each
Unit for a period of at least twenty (20) years after Final Acceptance for the
last Project under this Contract; provided, however, that,
if the Seller discontinues production of any spare part or otherwise is unable
or fails to supply such spare part to the Buyer and the Buyer is unable to
obtain such spare part from a readily available commercial vendor, the Seller
shall provide to the Buyer the address and identity of the Seller’s
Subcontractor or Supplier of such spare part and permission to obtain such
spare part directly from such Subcontractor or Supplier; and provided, further, that if the Seller discontinues
production of any spare part and the Buyer is unable to obtain such spare part
from a readily available commercial vendor or any of the Seller’s
Subcontractors or Suppliers, the Seller hereby agrees that the Seller shall not
assert, or make any claim under, any of its Intellectual Property rights with
respect to such spare part in the event the Buyer elects to make such spare
part itself or through its Subcontractors or Suppliers.
ARTICLE
15. Title and Risk of Loss.
15.1 Title Warranty.
The
Seller warrants and guarantees that legal title to, and ownership of, the
Equipment shall be free and clear of any and all liens, security interests,
claims or other encumbrances when title thereto passes to the Buyer.
15.2 Transfer of Title.
Title
to the Services shall pass to the Buyer as performed. Title to each item of the Equipment
shall pass from the Seller to the Buyer as follows:
12
(a) To each item of Equipment to be shipped from within
the U.S.; when the Seller makes such item Ready to Ship from the warehouse or
from the manufacturer’s facility.
(b) To each item of Equipment to be shipped from within
a country other than the U.S.; (i) when such item has been cleared for
import into the U.S., or (ii) if shipped from within Canada, when such
item departs from the territorial land, sea and overlying airspace of the sending
country.
15.3 Transfer of Title upon
Termination for Convenience. If this Contract is terminated for
the convenience of the Buyer pursuant to Section 22.1, (a) the Seller
shall retain title to each terminated Unit, and (b) title to each item of
Equipment comprising the non-terminated Units (if applicable) shall pass to the
Buyer upon the later of (i) payment to the Seller of 100% of the Unit
Price of such non-terminated Unit and of the per-Unit termination charges
calculated in accordance with Section 22.1 and the Termination Schedule,
and (ii) when title to such item of Equipment would otherwise have passed
pursuant to this Article 15.
15.4 Risk of Loss.
In the event that Seller is providing transportation services pursuant
to -Article 5.2, Risk of Loss to each item of the Equipment shall pass
from the Seller to the Buyer when the goods have been Delivered, In the event that Buyer or third party is
providing transportation services pursuant to Article 5.3 Risk of Loss to
each item of the Equipment shall pass from the Seller to the Buyer; (i) if Shipped from within the U.S. or Canada,when the goods have been loaded on the means
of transport provided by the carrier, nominated by the Buyer, or (ii) if
Shipped from within a country other than the U.S. or Canada, when such item has
been cleared for import into the U.S. If damage or destruction of the
materials, supplies or other elements of the Work occurs prior to the transfer
of risk of loss, the Seller shall proceed to repair, restore or replace the
affected element at its cost and expense, provided that
the Buyer agrees to make available to the Seller any and all insurance proceeds
(and rights to bring claims under the Buyer’s insurance policies) which may
apply to the damage or destruction. In
the event that Equipment is placed into Storage in accordance with
Article 6, the terms of transfer of Risk of Loss according to
Article 6 shall prevail.
ARTICLE
16. Warranty
16.1 Warranty Period.
The Seller shall warrant each Unit and its associated Equipment and
Services on the terms set forth herein from the effective date of this Contract
until the earlier of: (a) the date that is twenty-four (24) months after
Commercial Operation of such Unit, or (b) the date that is thirty-nine
(39) months after Shipment of the last Major Component of such Unit (the “Warranty
Period”).
16.2 Nature of the Warranty.
The Seller warrants to the Buyer that during the Warranty Period:
(a) the Equipment supplied hereunder shall be designed and fit for the
purpose of generating electric power when operated in accordance with the
Seller’s specific operation instructions and, in the absence thereof, in
accordance with generally accepted operation practices of the wind power
industry; (b) the Equipment supplied hereunder shall be free from defects
in material, workmanship and title; (c) the Equipment supplied hereunder
shall be new and unused; (d) the Equipment supplied hereunder conforms in
all respects to the Technical Specifications; and (e) the Services supplied
hereunder shall be performed in a competent, diligent manner in accordance with
Prudent Engineering Practices, Prudent Industry Practices, the Seller’s
manufacturer’s requirements and all applicable Laws.
13
16.3 Serial Defects.
If the same defect or deficiency shall occur in either 30% or more of
the generators in the Units or 30% or more of the gear boxes in the Units (a “Serial
Defect”), the Seller shall promptly investigate the root cause of such
Serial Defect, determine whether such Serial Defect is reasonably likely to
occur in any additional Units, and provide the Buyer with a detailed written
report addressing these issues. The
warranties set forth in this Article 16 shall continue to be in full force
and effect for the part or component containing the Serial Defect for an
additional eighteen (18) months beyond the expiration of the applicable
Warranty Period. Any dispute between the
Parties as to whether there is a Serial Defect shall be determined in accordance
with Article 32.
16.3 Remedy.If a
Project or any part thereof does not meet the warranties specified in
Section 16.2 during the Warranty Period, the Buyer shall promptly notify
the Seller in writing and shall promptly make such Project or part thereof
available for correction. The Seller, at
its sole cost and expense, shall as soon as is practicable thereafter correct
any warranty defect or breach by repairing or replacing (at its option) the
defective or inadequate parts of any Equipment or by reperforming any defective
or inadequate Services. The Seller shall
be responsible for the installation of any repaired or replacement part and for
payment of any customs duties or similar levies that may be assessed as a
result of the Shipment of any such repaired or replacement part. The condition of any tests shall be mutually
agreed upon, and the Seller shall be notified of, and may be represented at,
all tests that may be made. In the event
that the Seller refuses, fails, or is otherwise unable, to remedy the warranty
defect or breach within a reasonable period of time after the receipt of notice
from the Buyer, the Buyer shall have the right to hire one or more third
parties to remedy such defect or breach and the Seller will be obligated to pay
the reasonable costs of such third party(ies) if the Seller agrees there was a
warranty defect or breach or if it is determined that there was a warranty
defect or breachin dispute resolution.
16.4 Warranty on Remedial
Work. Any reperformed Service or repaired or
replacement part furnished under this warranty shall carry warranties on the
same terms as set forth in this Article 16, except that the warranties on
such reperformed Service or repaired or replacement part shall extend until the
later of: (a) the end of the original Warranty Period, or (b) the
date that is twelve (12) months after the date of such reperformance, repair or
replacement. In any event, the warranty
period for such reperformed Service or repaired or replacement part shall end
twelve (12) months after expiry of the Warranty Period, subject to
Section 16.3.
16.5 Exclusions.
The Seller does not warrant the Equipment or any repaired or replacement
parts against normal wear and tear, including that due to the environment or
operation. The warranties and remedies
set forth herein are further conditioned upon (a) the storage in material
conformance with the storage instructions provided by the Seller, installation,
operation, and maintenance of the Equipment and in material conformance with the
operation instruction manuals (including revisions thereto) provided by the
Seller and/or its Subcontractor or Suppliers as applicable and (b) repair
or modification only pursuant to the Seller’s instructions, with the Seller’s
approval (which shall not be unreasonably withheld), or in accordance with
Section 16.4. The Buyer shall keep
proper records of operation and maintenance during the Warranty Period. These records shall be kept in the form of
logsheets, and copies shall be provided to the Seller upon its request and at
its sole cost and expense.
16.6 Software Warranties.The Seller warrants to the Buyer
that during the Warranty Period and under normal use the media in which the
Software is embedded shall be free from defects in material and workmanship. The Seller warrants to the Buyer that during
the Warranty Period the Software will perform substantially in accordance with
its Documentation. If, during the
Warranty Period, an Error occurs (where “Error” is defined as a failure of the
unmodified (except as contemplated
14
in the Technical Specifications or the
Documentation) Software to operate substantially in accordance with the
Technical Specifications and the Documentation), the Seller will use
commercially reasonable efforts to correct such Error, if the Buyer furnishes
the Seller with the following:
(i) written notice of the warranty claim, including a description
of the failure to perform in accordance with the Documentation and a specific
description of the operating conditions (including the specific
software/hardware configuration) under which the failure occurred, and
(ii) to the extent feasible, a representative sample of inputs for
repeating and analyzing the failure. If the Seller is unable, after using
commercially reasonable efforts, to correct the Error, the Parties shall follow
the dispute resolution process set forth in Article 32. The Seller does
not warrant that the Software or the Documentation (or the Buyer’s use of it)
will be free from all Errors or that its use will be uninterrupted. Any remedial steps taken by the Seller shall
extend the Warranty Period in accordance with Section 16.5. Except as expressly authorized by the Seller
in writing, all Third-Party Software shall carry only the warranties provided
by its owners. The Seller makes no
warranties with respect to the Third-Party Software.
16.7 Exclusive Remedies and
Warranties. Except for the provisions of Articles 12, 17,
18, 19, 21, 27 and 28, the preceding paragraphs of this Article 16 set
forth the exclusive remedies for all claims based on failure of, or defect in,
the Equipment and Services provided under this Contract, whether the failure or
defect arises before or during the Warranty Period and whether a claim, however
instituted, is based on contract, indemnity, warranty, tort (including
negligence), strict liability or otherwise.
Except for the provisions of Articles 12, 17, 18, 19, 21, 27, and 28,
the foregoing warranties are exclusive and are in lieu of all other warranties
and guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
ARTICLE
17. Delays in Shipment and Commercial
Operation
17.1 Shipment.
If any of the Major Components associated with any Unit is not Shipped
on or before (with the prior approval of the Buyer) the Scheduled Major
Component Shipment Date set forth in Attachment 1 for reasons
attributable to the Seller and not excused elsewhere in this Contract, the
Seller shall pay as liquidated damages, and not as a penalty, a sum calculated
in accordance with the table below for each Unit for each day of delay after
the Scheduled Major Component Shipment Date as set forth in Attachment 1
until actual Shipment of the last Major Component for such Unit:
Days after Scheduled
Major Component
Shipment Date
Liquidated Damages
(per day or partial day)
***
***
***
***
***
***
Such liquidated damages, if any, shall be computed
based on the date of Shipment of the last Major Component for a given Unit and
such computations shall disregard any part of or accessory to the Major
Component which may be shipped separately and arrive later unless such part of
or accessory to the Major Component is necessary for the installation of the
Major Component. Seller shall not be liable for Shipment Liquidated
Damages for delay to the extent that such late Shipment does not impact Buyer’s
cost or schedule of performance.
15
17.2 Commercial Operation.
If any Unit has not achieved Commercial Operation (as defined in
Section 8.2) within ten (10) days
following Mechanical Completion, the Seller shall pay as liquidated damages,
and not as a penalty, a sum calculated in accordance with the table below for
each Unit for each day of delay until Commercial Operation of such Unit is
achieved:
Days of Delay after
Mechanical
Completion date plus
10 days
Liquidated Damages
(per day or partial day)
***
***
***
***
provided, however, that the date of Mechanical Completion for any Unit
shall be extended day for day for any full day on which Commercial Operation
for such Unit is delayed solely as a result of (a) lack of suitable wind,
excessive wind speeds that prevent turbine operation, or sustained on site hub
height wind speeds in excess of 33 miles per hour that prevent hub entry,
(b) the failure of the Buyer, the Owner or any third party to provide
interconnection or transmission capability, or (c) the Buyer operating or
directing the operation of such Unit for commercial purposes prior to the date
of Commercial Operation.
17.3 Limitations.
The Seller’s aggregate liability under this Article 17 for
liquidated damages for delay in Shipment of Major Components and for delay in
Commercial Operation with respect to a Project that includes the delayed
Unit(s) shall not exceed *** percent (***%) of the amount of the Purchase
Order Price for such Project. The liquidated damages for delay in Shipment of
Major Components and for delay in Commercial Operation shall be the Buyer’s
sole and exclusive remedies for such delays.
17.4 Nature of Liquidated
Damages. The Parties acknowledge that the Buyer shall
suffer damages that will be difficult to ascertain if the Seller fails to
comply with the Scheduled Major Component Shipment Dates or if Commercial
Operation is delayed. The Parties agree
that the liquidated damages specified in this Article 17 are reasonable
compensation for such failures and delays.
ARTICLE
18. Power Curve Guarantee
18.1 Guarantee.
If a Project is tested in accordance with this Contract and the
Technical Specifications, and subject to the conditions therein specified, the
Seller guarantees that during the Warranty Period such Project will achieve ***
per cent (***%) of the energy yield computed on the basis of the theoretical
characteristic performance curve included in Appendix A (the “Power
Curve Guarantee”).
18.2 Power Curve Tests.
To demonstrate that the Power Curve Guarantee has been fulfilled, the
Buyer may elect at its own expense to cause the Units identified by the Buyer
prior to the Commercial Operation of the first Unit (the “Nominated Units”
as described in further detail in Appendix A, Technical Specifications)
to be tested by an independent engineer reasonably acceptable to the
Seller. If when first so tested the
average performance of all Nominated Units fails to meet the Power Curve
Guarantee, then: (a) the Seller
shall reimburse the Buyer for the cost of the initial test; (b) during
16
the three (3) months next following such
test, the Seller shall be afforded thirty (30) continuous days of access to
each of the Nominated Units to undertake adjustments, and no later than the end
of such three-month period the Seller shall re-test the Nominated Units at its
sole cost and expense; provided, however,
that the Buyer shall pay for the last, successful test; and (c) at the end
of each successive twelve-month portion of the Warranty Period, the Seller
shall pay to the Buyer as liquidated damages, and not as a penalty, a sum
calculated in accordance with Article 18.4 below, commencing at the
beginning of the Warranty Period and continuing until the end of the Warranty
Period or until a subsequent test of the Nominated Units shows that they meet
the Power Curve Guarantee.
18.3 Re-Testing.
If at the first re-test the Nominated Units fail to meet the Power Curve
Guarantee, the Seller shall be permitted reasonable access to the Nominated
Units to perform adjustments and may at its option and expense perform
additional tests at intervals of no less than three (3) months until the
end of the Warranty Period or until a subsequent test of the Nominated Units
shows that they meet the Power Curve Guarantee.
If at the end of the Warranty Period the Nominated Units have not met
the Power Curve Guarantee, the Seller shall pay to the Buyer as additional
liquidated damages, and not as a penalty, a sum calculated as set forth in
Article 18.4 below.
18.4Liquidated Damages. If after the final performance test the
Nominated Units fail to achieve the Power Curve Guarantee as evidenced by the
Test Result, the Seller shall pay to the Buyer as liquidated damages, and not
as a penalty, a sum calculated in accordance with the following formula:
[PCG
(98%) – Test Result (xx.xxx%)] x Power Curve LD Rate x Number of Units at the
Facility
Where:
PCG
= Power Curve Guarantee
Test Result = average of
upper confidence level of all Nominated Units, expressed as a percentage (%),
as calculated and adjusted in accordance with the Technical Specification.
Power
Curve LD Rate = $*** per Unit for each percent in power curve deficiency,
prorated per hundredth of a percent.
Number
of Units at the Facility = All Units at the Facility of the same model or type
as covered under this Contract
18.5Other Units.
At
the Buyer’s option, the Seller shall, at its expense, either (a) make any
repairs performed on one or more Nominated Units to all of the Units, or
(b) make any repairs performed on one or more Nominated Units to the Units
designated by the Buyer.
18.6Limitations.
The Seller’s aggregate liability under this Article 18 for
liquidated damages for failure to achieve the Power Curve Guarantee shall not
exceed *** percent (***%) of the Purchase Order Price for the relevant
Project. The liquidated damages for
failure to achieve the Power Curve Guarantees and the corrective action
required by this Article 18 to be taken by the Seller for deficiencies in
performance shall be the Buyer’s exclusive remedies for such deficiencies.
18.7Nature of Liquidated
Damages. The Parties acknowledge that the Buyer shall
suffer damages that will be difficult to ascertain if the Seller fails to
achieve the Power Curve Guarantee. The
Parties
17
agree that the
liquidated damages specified in this Article 18 are reasonable
compensation to the Buyer for such failure.
ARTICLE
19. Sound Level
19.1 Guarantee.
When tested in accordance with this Contract and the Technical
Specifications, and subject to the conditions therein specified, the Seller
guarantees that the sound emitted from each Unit during the Warranty Period
shall not exceed the Sound Level Guarantee set forth in Appendix A.
19.2 Sound Tests .If
any Unit fails to meet the Sound Level Guarantee, the Seller shall at its
option and at its sole cost and expense either (a) take such corrective
action as will cause such Unit to achieve the guaranteed sound level, including
adjustments to controls or operating parameters, or (b) with the Buyer’s
consent, effect a release or other settlement of any claims (whether for
nuisance or otherwise) from cognizant governmental authorities and persons
directly affected by the sound level at the Unit. Except as may be provided in the Contract,
the performance of the obligations set forth in subparagraphs (a) or
(b) above shall be the Buyer’s exclusive remedy for excess sound
levels. If the corrective action taken
pursuant to item (a) above includes any adjustment to controls or
operating parameters, the Buyer shall have the right to request the Seller to
re-test the Power Curve Guarantee with respect to the relevant Units, in which
case the provisions of Article 18 shall be applicable.
ARTICLE
20. Suspension
20.1 Suspension by Buyer of
Work at Site. The Buyer shall have the right, at any time,
to suspend Work at the Site upon written notice to the Seller. Upon the Seller’s receipt of such notice, the
Seller shall immediately suspend the performance of all Work at the Site under
this Contract, and the Seller shall notify all of its Subcontractors and
Suppliers of the suspension. During the suspension, the Seller shall protect
and take care of all Work supplied or to be supplied under this Contract, and the
Parties shall cooperate in good faith to maintain the commitments of the
Seller’s Subcontractors and Suppliers.
The Seller shall use commercially reasonable efforts to minimize the
impact of the suspension on the costs and delays it incurs as a result of the
suspension. Any costs reasonably and
actually incurred by the Seller as a result of the suspension (including
storage costs) in excess of the costs the Seller would otherwise have incurred
shall be payable by the Buyer within thirty (30) days after receipt of an
invoice from the Seller. Performance of
the Seller’s obligations shall be equitably extended for a period of time based
upon the time lost as a result of the suspension and the impact on the Seller’s
performance of the Work.
20.2 Suspension by Buyer of
Manufacturing. It is expressly agreed that the Buyer shall
have no right to suspend manufacture of the Equipment.
ARTICLE
21. Termination
21.1 Termination for
Convenience.The Buyer shall have the right to
provide notice to the Seller terminating this Contract for its convenience with
respect to any Unit until the earlier of the dates: (a) when title to such Unit has passed
to the Buyer pursuant to Article 15, or (b) when such Unit has been
Shipped to the Buyer. Termination will
be effective upon the receipt by the Seller of termination charges calculated
on a per Unit basis with respect to the applicable number of Units in
accordance with the Termination Schedule included in Attachment 7 .
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21.2 Grounds for
Termination by Buyer. The Buyer
shall have the right to terminate this Contract for cause in the event that the
Seller: (a) becomes insolvent, makes an assignment for the benefit of its
creditors, has a receiver or trustee appointed for the benefit of its
creditors, or files for protection from creditors under any bankruptcy or
insolvency laws; provided, however, that, in the
case of an involuntary proceeding, such proceeding is not dismissed or stayed
within forty-five (45) days after it is commenced; or (b) breaches and
fails to comply with or perform its material obligations; provided,
however, (i) that the Buyer shall first have provided the
Seller with written notice of the nature of such breach and of the Buyer’s
intention to terminate this Contract as a result of such breach, and
(ii) that the Seller shall have failed within thirty (30) days after
receipt of such notice to cure such breach.
21.3 Remedy in the Event of
Termination by Buyer. If the Buyer
terminates this Contract as provided in Section 21.2, in addition to its
rights to pursue any remedy existing at law or in equity, the Buyer shall have
the right to have the Work (or comparable equipment and services) completed by
other vendors for equipment and services comparable to the Equipment and
Services described in this Contract. If
the sum of (a) the total cost to the Buyer of completing the Work,
(b) all other damages suffered by the Buyer as a result of the default by
the Seller, and (c) all amounts previously paid to the Seller under this
Contract, exceeds the Contract Price, the Seller shall pay the difference to
the Buyer in the Contract Currency within thirty (30) days after receipt of an
invoice from the Buyer.
21.4 Technical Assistance;
Upgrades and Support.Upon
termination of this Contract, the Seller shall provide the Buyer for the
remaining life of each Project, but not to exceed twenty (20) years from the
date of Final Acceptance of the Project, with (a) technical assistance and
support and all hardware or software improvements for such Project generally
made available to the purchasers of the Seller’s Equipment and/or Services, and
(b) Software updates and upgrades and technical bulletins and updates made
generally available to the Seller’s customers or provided to its own operating
personnel for use in connection with such Project, together with any revisions
or other modifications to the Software as the Buyer may request from time to
time. All such technical assistance, improvements,
Software updates and upgrades and technical bulletins and updates shall be
provided at the Buyer’s request, and the Seller shall be reimbursed therefore
at the then-current rates charged by the Seller from time to time for similar
services to other customers of the Seller which have purchased wind power
generation equipment, or, if such services are not being provided to such
customers, then at the Seller’s standard rates.
The Buyer shall use such Software updates and upgrades in accordance with
the License set forth in Article 28.
21.5 Grounds for
Termination by the Seller. Subject to
the rights of any Financing Party, the Seller shall have the right to terminate
this Contract for cause in the event that the Buyer: (a) becomes
insolvent, makes an assignment for the benefit of its creditors, has a receiver
or trustee appointed for the benefit of its creditors, or files for protection
from creditors under any bankruptcy or insolvency laws; provided,
however, that, in the case of an involuntary proceeding, such
proceeding is not dismissed or stayed within forty-five (45) days after it is
commenced; or (b) fails to make any payment when due as set forth in this
Contract; provided,
however, (i) that the Seller shall first have provided the
Buyer with written notice of the nature of such failure and of the Seller’s
intention to terminate this Contract as a result of such failure, and
(ii) that the Buyer shall have failed within thirty (30) days after
receipt of such notice to correct such failure.
21.6 Remedy in the Event of
Termination by the Seller. If the Seller
terminates this Contract as provided in Section 21.5, the Buyer shall pay
to the Seller the charges set forth in the Termination
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Schedule in Attachment 7 as the
Seller’s exclusive remedy, and the Seller shall have no right to damages or
compensation for such termination other than payment of the charges set forth
in Attachment 7.
21.7 Financing Party Cure
Rights. The Seller may not exercise its right to
terminate this Contract under Section 21.5 unless the Seller delivers to
the Financing Parties notice of the Buyer’s failure to cure the default (a “Default
Notice”) and the Seller’s intent to terminate as a result thereof at the
same time the Seller delivers notice thereof to the Buyer. Each Financing Party or one or more of its
designees shall have the right to cure the Buyer’s default within sixty (60)
days after the date the Financing Party receives such Default Notice; provided, however, that if the nature of any non-monetary
default by the Buyer is such that it cannot be cured by the Financing Party or
one or more of its designees without having taken possession of one or more of
the Projects, the time provided herein to remedy such default shall be extended
for such period of time as is reasonably necessary for the Financing Party or
one or more of its designees to lawfully obtain possession of, and be legally
entitled to operate, such Projects. If the Financing
Parties intend, or cause one or more of their designees, to assume this
Contract, they shall provide notice thereof to the Seller within sixty (60)
days after receipt of the Default Notice.
For the avoidance of doubt, the Financing Party may assign part or all
of the rights under this Contract, including the Equipment and related
services, to one or more designees without the Seller’s consent. Once any
default of the Buyer under this Contract is cured by one or more Financing
Parties or one or more of their designees, the Seller’s rights to terminate
this Contract and to collect termination charges as a result of such default
shall be of no further force and effect.
ARTICLE
22. Excusable Delays
22.1 Excusable Delays.
Neither Party shall have any liability or be considered to be in breach
or default of its obligations under this Contract to the extent that
performance of such obligations is delayed or prevented, directly or
indirectly, due solely to causes that are unforeseeable as of the effective
date of this Contract and beyond its reasonable control, including
(a) acts of God, acts (or failures to act) of governmental authorities
after the exercise of reasonable diligence, fires, severe weather conditions,
earthquakes, strikes or other labor disturbances, floods, war (declared or
undeclared), epidemics, civil unrest, riots, delays in transportation (other
than such delays caused by (i) the Seller or Seller’s sub-contractor’s
negligence in the event that Seller provides transportation pursuant to
Article 5 Section 5.2 or (ii) the Buyer or Buyer’s sub-contractor’s
negligence in the event that Buyer provides transportation pursuant to
Article 5 Section 5.3), or car shortages;or
(b) in the case of the Seller, shipment to storage in accordance with
Article 6. The affected Party shall
(w) notify the other Party promptly of the occurrence of any such event
(and, in any event, within ten (10) days after such event) describing the
details of the event; (x) notify the other Party of the expected duration
and likely impact of the event within twenty (20) days after such event;
(y) use all commercially reasonable efforts to overcome the cause and
effects of such delay; and (z) notify the other Party promptly after the
affected Party is able to resume performance.
The dates of Shipment or of other performance under this Contract shall
be equitably extended for a period of time based upon the time lost as a result
of the excusable delay and the impact on the Seller’s performance of the
Work. Notwithstanding anything to the
contrary above, (i) delays in Buyer obtaining necessary project related
permits shall not be deemed an Excusable Delay, and (ii) Buyer shall not
be excused from making payments due in accordance with the Contract as a result
of an Excusable Delay.
22.2 Termination for
Extended Delay. If the entire Work is suspended because of an
excusable delay for more than one hundred eighty (180) days and the Parties
have not agreed upon a revised basis for continuing the Work at the end of such
period, then either Party, upon thirty (30) days
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written notice, may terminate the Contract
with respect to the portion of Equipment to which title has not yet passed at
no cost or penalty, unless the delay was caused by the Party seeking to
terminate.
ARTICLE
23. Indemnity
23.1 General IndemnityEach Party (each an “Indemnifying
Party”) shall indemnify, defend and hold harmless, the other Party, its
Affiliates, and their officers, employees, agents, Financing Parties and
Subcontractors (each an “Indemnified Party”) against any and all suits,
actions, losses, damages, claims or liability (including, without limitation,
attorneys’ fees and expenses) for any injury or death to any person or damage
to property of third parties arising out of, or in connection with, negligence
or willful misconduct of the Indemnifying Party or its officers, employees,
agents or Subcontractors.
23.2 Environmental
Indemnities.
23.2.1 The Seller shall indemnify, defend
and hold harmless the Buyer, its Affiliates, officers, employees, agents and
Financing Parties against any and all suits, actions, response actions, orders,
losses, damages, civil or criminal penalties, fees, costs, expenses, claims or
liabilities (including, without limitation, attorneys’ fees and expenses)
arising out of, or in connection with, the Release (or alleged Release) of any
Hazardous Substances introduced to the Site by the Seller, or violations (or
alleged violations) of any laws pertaining to human health and the environment,
by the Seller, its Affiliates, officers, employees or agents or by the Seller’s
Subcontractors or Suppliers in connection with the performance of the Work,
including, without limitation, with respect to (a) any costs, damages or
liabilities associated with personal injury or death, or (b) damage to
property, including the costs of investigation, cleanup, removal, remedial,
corrective or response action.
Notwithstanding the foregoing provisions of this Section 23.2.1,
the Seller shall not be responsible for any loss or portion thereof (a) to
the extent attributable to the negligence or willful misconduct of the Buyer,
or (b) to the extent attributable to the breach by the Buyer of any
provision of this Contract.
23.2.2 The Buyer shall indemnify, defend
and hold harmless the Seller, its Affiliates, and its and their officers,
employees, agents against any and all suits, actions, response actions, orders,
losses, damages, civil or criminal penalties, fees, costs, expenses, claims or
liabilities (including, without limitation, attorneys’ fees and expenses)
arising out of, or in connection with, the Release (or alleged Release) of any
Hazardous Substances at the Site (other than any Hazardous Substances
introduced to the Site by the Seller), or violations (or alleged violations) of
any laws pertaining to human health and the environment in respect of the Site,
by the Buyer, or its Affiliates, officers, employees or agents, including,
without limitation, with respect to (a) any costs, damages or liabilities
associated with personal injury or death, or (b) damage to property,
including the costs of investigation, cleanup, removal, remedial, corrective or
response action. Notwithstanding the
foregoing provisions of this Section 23.2.2, the Buyer shall not be
responsible for any loss or portion thereof (i) to the extent attributable
to the negligence or willful misconduct of the Seller, or (ii) to the
extent attributable to the breach by the Seller of any provision of this
Contract.
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23.3 Lien Indemnity.
The Seller shall indemnify, defend and hold harmless the Buyer, its
Affiliates, and its and their officers, employees, agents, Financing Parties
and contractors (other than the Seller) against any and all liens filed in
connection with performance of the Work under this Contract (including, without
limitation, attorneys’ fees and expenses incurred in discharging such liens or
similar encumbrances). If the Seller fails to immediately discharge any lien or
similar encumbrance upon any Project or any part thereof, or any other property
of the Seller, or property where such Project is located, or any Equipment or
Services for which the Seller is responsible hereunder, the Seller shall
satisfy or defend any such lien or similar encumbrance; provided,
however, that the Seller shall have the right to submit a bond
satisfactory to the Buyer and the Financing Parties in the amount of any such
lien or encumbrance if the Seller, despite its commercially reasonable efforts,
has been unable to obtain discharge hereof; and provided,
further, that the Buyer shall not be required to accept any such
bond in lieu of discharge at or after the Final Acceptance. If the Seller does not promptly satisfy such
lien or similar encumbrance (or, where permitted, fails to provide the Buyer a
bond in lieu thereof), the Buyer shall have the right, at its option and after
notice to the Seller, to post a bond or pay or settle such lien or similar
encumbrance by bond or agreement, and the Seller shall within ten
(10) days after request of the Buyer, reimburse the Buyer for all direct
costs incurred by the Buyer to post such bond, discharge such lien or similar
encumbrance and/or pursue any other remedies, including administrative costs,
attorney’s fees and other direct expenses.
23.4 Concurrent Negligence.
If any damage or injury is caused by the joint or concurrent negligence
of the Parties, their officers, employees, agents, Subcontractors, or
Suppliers, the Parties shall bear the loss in proportion to their or their
officers’, employees’, agents’, Subcontractors’ or Suppliers’ degree of
negligence.
23.5 Notice and Procedure.
Promptly after the Indemnified Party receives any claim or notice of the
commencement of any action, administrative or legal proceeding, or
investigation as to which the indemnity provided for in Sections 23.1 through
23.3 may apply, the Indemnified Party shall notify the Indemnifying Party in
writing of such fact; provided, however,
that the rights of the Indemnified Party shall not be forfeited by the failure
to give the Indemnifying Party notice to the extent that said failure does not
have a material and adverse effect on the defense of the matter. The Indemnifying Party shall assume on behalf
of the Indemnified Party, and conduct with due diligence and in good faith, the
defense thereof with counsel reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party shall not
settle any such action or investigation unless approved by the Indemnified
Party (which approval shall not be unreasonably withheld). Notwithstanding the foregoing, (a) the
Indemnified Party shall have the right to be represented in any such action or
investigation by advisory counsel of its own selection and at its own expense,
and (b) if the Indemnified Party shall have reasonably concluded that
(i) there may be legal defenses available to it that are different from,
or additional to, or inconsistent with, those available to the Indemnifying
Party, or (ii) there exists a conflict of interest between the Indemnifying
Party and the Indemnified Party, then, in either case, the Indemnified Party
shall have the right to select separate counsel to participate in the defense
of such action on its own behalf and the Indemnifying Party shall indemnify the
Indemnified Party for the fees and expenses of such separate counsel. If any claim, action, proceeding or
investigation arises as to which the indemnity provided for in
Section 23.1, 23.2 or 23.3 applies and the Indemnifying Party fails to
assume the defense of such claim, action, proceeding or investigation, then the
Indemnified Party may, at the Indemnifying Party’s expense, contest or settle
such claim, and the Indemnifying Party shall remain obligated to indemnify the
Indemnified Party for any and all losses, damages, and liability (including,
without limitation, attorneys’ fees and expenses) associated therewith. The payment of the
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indemnity pursuant to this Section 23.5
shall not be predicated on the Indemnified Party having made payment on any
suit, action, loss, damage, claim or liability.
23.6 “Third Parties”
Defined. “Third parties” under this Article 23 do
not include the Parties, their affiliates, agents, successors or assigns, any
operation or maintenance contractor of the Parties, or any entity (a) with
an equity or security interest in either Party, or their assets or property,
(b) that seeks to claim any rights, power or privileges of one of the
Parties, or (c) that seeks to claim as a third party beneficiary of one of
the Parties. No portion of the
Equipment, the Project or electricity is “property of third parties” for the
purposes of this Article 23.
ARTICLE
24. Limitations of Liability
24.1 Limitation on
Liquidated Damages. The Seller’s
aggregate liability for liquidated damages for delay in Shipment of the Major
Components and for delay in Commercial Operation under Article 17, and for
failure to achieve the Power Curve Guarantee under Article 18 for each
Project shall not exceed *** percent (***%) of the Purchase Order Price for the
relevant Project.
24.2 Limitation on the
Seller’s Liability. The total
liability of the Seller for all claims arising out of, or relating to the
performance or breach of, this Contract or the use of any Equipment or Services
for each Project shall not exceed the Purchase Order Price for such Project (as
adjusted pursuant to Article 10); provided, however,
that this limitation shall not apply to any claim (a) due to the gross
negligence, or willful misconduct of the Seller, or (b) for
indemnification for third party claims as provided for in this Contract. The Seller’s liability for each Project shall
terminate upon the earlier of forty-five (45) months after Commercial Operation
or forty-eight (48) months after Delivery of the last Unit purchased under the
Purchase Order for such Project. The
Buyer may enforce a claim that accrued before that date by giving a written
notice to the Seller no later than *** (***) months after Commercial Operation
of the last Unit purchased under such Purchase Order.
24.3 Limitation on the
Buyer’s Liability. The total liability of the Buyer for all
claims arising out of, or relating to the performance or breach of, this
Contract or the use of any Equipment or Services for each Project shall not
exceed the Purchase Order Price for such Project (as adjusted pursuant to
Article 11); provided, however, that this
limitation shall not apply to any claim (a) due to the gross negligence,
or willful misconduct of the Buyer, or (b) for indemnification for third
party claims as provided for in this Contract.
The Buyer’s liability for each Project shall terminate upon the earlier
of *** (***) months after Commercial Operation or *** (***) months after
Delivery of the last Unit purchased under the Purchase Order for such
Project. The Seller may enforce a claim
that accrued before that date by giving a written notice to the Buyer no later
than *** (***) months after Commercial Operation of the last Unit purchased under
such Purchase Order.
24.4 Consequential and
Other Damages. Except to the extent expressly provided in
this Contract, neither Party shall be liable to the other Party for loss of
profit or revenues, loss of product, loss of use of the Work or any associated
equipment, interruption of business, cost of capital, cost of replacement,
downtime costs, or any special, consequential, incidental, indirect, punitive
or exemplary damages.
24.5 “Seller” and “Buyer”
Defined.
For the purposes of this Article 24, the term “Seller” shall mean the
Seller, its Affiliates, its Subcontractors and Suppliers of any tier, and their
agents and employees, individually or collectively. For the purposes of this Article 24, the
term “Buyer” shall mean
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the Buyer, its Affiliates, contractors of any
tier (other than the Seller and its Subcontractors and Suppliers of any tier),
and their agents and employees, individually or collectively.
24.6 Limitations to Prevail.
The limitations and exclusions in this Article 23 shall apply
regardless of whether a claim is based in contract (including warranty or
indemnity), tort (including negligence or strict liability), statute, equity or
any other extra-contractual theory.
ARTICLE
25. Insurance
25.1 Insurance for Injuries
to Workers. During the term of the Contract, both Parties
shall maintain at their own expense the insurance for work-related injuries or
disease of their own employees in such forms and amounts as may be required by
Laws that are applicable to each Party and its employees.
25.2 General Liability and
Automobile Insurance. During the term of the Contract, each Party shall
maintain the following insurance coverage at its own expense to protect its own
interests: (a) Commercial General Liability or Public Liability insurance,
in broad form, either per occurrence or effective for at least three years
after the expiration of this Contract, that includes coverage for contractual
liability, bodily injury and third party property damage, with a combined
single limit of not less than U.S. $*** per occurrence and U.S. $*** in the
aggregate annually, for primary and excess policies combined; and
(b) automobile liability insurance covering all owned, non-owned, and
hired automobiles used by it in connection with the work, if any, with a
combined single limit of not less than U.S. $*** per occurrence, for primary
and excess policies combined. In the event any of the foregoing insurance
policies are cancelled or materially changed each Party will endeavor to
provide thirty (30) days’ advance written notice to the other Party or, in the
case of non-payment, ten (10) days’ advance written notice. Upon request, each Party shall deliver to the
other Party certificates of insurance showing that the foregoing insurance is
in full force and effect.
25.3 CAR/ARBR Insurance.
The Buyer shall provide either Contractor’s All Risk Insurance or All
Risk Builder’s Risk Insurance (CAR/ARBR) as and when described below. In the event of a loss or damage before
Final Acceptance of any Project, the Buyer shall be responsible for the
CAR/ARBR policy deductible unless loss or damage results from the negligence of
the Seller in which case the Seller shall be responsible for the lesser of the
actual CAR/ARBR policy deductible or $*** per occurrence; provided,
however, such deductible shall be subject to the limits set for in
Article 24. Except as provided in
the preceding sentence, the Seller shall not be responsible for any insurance
exclusions or deductibles or any uninsured or uninsurable loss or damage to a
Project or other loss or damage to a Project under construction. The CAR/ARBR policy shall at a minimum meet
the following requirements: (a) the policy shall be in effect from the
scheduled commencement of Work at the Site or shipment of Equipment to storage
locations, staging areas or lay-down areas through Final Acceptance of the
relevant Project;(b) the
policy shall be non-cancelable by the Buyer and by the insurer, except ten
(10) days for non-payment of premium; (c) the Buyer and the Eligible
Assignees, shall be named insureds; (d) the policy shall include as
additional insureds the Seller, any of its Affiliates that is performing Work,
and all Subcontractors (regardless of tier), and all Suppliers with respect to
their activities on the Site, the Financing Parties and any of the Financing
Parties’ designees; (e) the policy shall cover all risks of physical loss
or damage to a Project, including mechanical and electrical breakdown, in the
course of, construction, start-up, testing and commissioning, including
materials, equipment and furnishings, and loading and unloading of any
equipment at the Site, Port of Import,
storage facilities, staging areas and lay-down areas, up to the value of the relevant Project at
Final Acceptance, except for customary
24
exclusions; (f) the policy shall be
provided by insurers who are authorized to provide insurance in the
jurisdiction(s) where the work will be performed; (g) the policy
shall include minimum design/defects coverage equal to LEG2 or DE4;(h) the
policy shall include a waiver of subrogation in favor of the Seller, its
Affiliates and its Subcontractors and Suppliers; (i) the policy shall
include extended maintenance during the warranty period; and (j) the
policy shall include coverage for storage locations, staging areas, lay-down
areas and Port of Import, and transit insurance in an amount sufficient to
cover the exposure at risk.
25.4 Transit Insurance.
With respect to any Delivery made pursuant to Section 5.2 only, the
Seller shall provide insurance covering all risks of physical loss or damage to
any Major Components, Equipment or Units during loading and during transit by
air, sea or otherwise from the place of manufacture until Delivery, not
unloaded, to the earlier of
(i) shipment to storage,
(ii) the Closest Common Carrier Point to the Site, or
(iii) Buyer directed staging or lay-down area with sublimits sufficient to
insure the full replacement value of such Major Component(s), Unit(s) or
Equipment. With respect to any Shipment made pursuant to Section 5.3, the
Seller shall not be responsible for transit insurance after transfer of Risk of
Loss in accordance with Section 15.4.
Such insurance shall be provided by Buyer and provide coverage during
loading the Equipment on any collecting transport and during transportation.
and shall include Seller as loss payee.
25.5 All Risk Insurance.
From Final Acceptance through the expiration of the Warranty Period for
the relevant Project, Buyer shall maintain “All Risks” Property Insurance. In
the event of a loss or damage from the Warranty Period through the expiration
of the Warranty Period for any Project, the Buyer shall be responsible for the
policy deductible unless the loss or damage results from the negligence of the
Seller, in which case the Seller shall be responsible for the lesser of the
actual policy deductible or $*** per occurrence; provided,
however, that the Seller’s liability for any such deductible shall
be subject to the liability limits set forth in Article 24. The “All
Risks” Property Insurance policy shall meet the following requirements: (a) the policy shall cover “all risks”
of physical loss or damage except as hereinafter provided, including coverage
for boiler and machinery (electrical and mechanical breakdown), transit, and
off-site storage exposure for an amount equal to the replacement value of the
relevant property; and (b) the coverage shall not contain an exclusion for
resultant damage caused by faulty workmanship, design or materials. This policy shall
include a waiver of subrogation in favor of the Seller, its Affiliates, and its
Subcontractor and Suppliers.
25.6 Failure to Maintain
Insurance.
If either Party fails to maintain in full force and effect insurance complying
with the requirements of this Article 25, subject to the other provisions
of this Contract, such Party shall be responsible for any resulting losses or
damages sustained by the other Party and shall hold the other Party harmless
from actions brought against the other Party as the result of the absence of
the required insurance.
25.7 Buyer’s Risks.
Except to the extent the Seller is liable for breach of this Contract or
under the indemnity obligations set forth in this Contract, the Seller shall
not be financially liable for the consequences of the following risks (“Buyer’s
Risks”): communications interference (such as microwave or AM radio
interference), aviation restrictions, incidents relating to ice throws,
migratory path issues, incidents resulting from endangered species or wetlands
protection, radar interference, visual impact, flicker effect, or incidents
arising from previous usage of the land (such as military ordinance training or
testing, burial grounds or historical landmarks), damage and losses due to war,
hostilities, terrorism, rebellion, revolution, civil disturbance, nuclear
radiation, breach of this Contract by or negligence of the Buyer, acts or
omissions of the Buyer and natural perils (such as flood or earthquake) or other
perils, in
25
each case to the extent that the peril is
excluded from the CAR/ARBR policy coverage or the loss is in excess of the
policy limits; provided, however, that the
Seller shall not be excused by any such Buyer’s Risk from the performance of
any of its obligations under this Contract unless the Seller is excused
pursuant to Section 23.1.
25.8 Subcontractors and
Suppliers.
25.8.1 Seller’s
Subcontractors and Suppliers.The Seller shall require its Subcontractors and
Suppliers to maintain the insurance described in Sections 25.1 and 25.2 and
above; provided, however, that the combined
single limit per occurrence and the aggregate annual limits for the Commercial
General Liability or Public Liability insurance and automobile liability
insurance maintained by such Subcontractors and Suppliers need only be
consistent with the limits maintained by prudent subcontractors and suppliers
for similar projects in similar locations.
25.8.2 Buyer’s Subcontractors
and Suppliers.
The Buyer shall require its Subcontractors and Suppliers to maintain the
insurance described in Sections 25.1 and 25.2 above; provided,
however,that
the combined single limit per occurrence and the aggregate annual limits for
the Commercial General Liability or Public Liability insurance and automobile
liability insurance maintained by such Subcontractors and Suppliers need only
be consistent with the limits maintained by prudent subcontractors and
suppliers for similar projects in similar locations.
25.9 Other Insurance Terms
and Conditions.
25.9.1 Insurers.
All insurance provided by the Buyer or the Seller shall be placed with
reputable and recognized insurance companies having an AMBEST Rating of at
least A- VII.
25.9.2 Unavailability of
Insurance. Each Party shall maintain insurance in
accordance with the requirements set forth in this Article 25; provided, however, that in the event any insurances (or any
of the terms thereof) required to be maintained by this Article 25, other
than insurance (or any of the terms thereof) required by any applicable Law to
be maintained, shall not be available and commercially feasible in the
commercial insurance market, the Party which is required to maintain such
insurance shall be excused from maintaining such insurance (or any of the terms
thereof) and, provided further, that such Party
provides prompt written notice of the non-availability or infeasibility of such
insurance (or any of the terms thereof) to the other Party, and
(b) consults with the other Party regarding such non-availability or
infeasibility.
25.10 Certificates of
Insurance. No later than thirty (30) days prior to the
first Shipment under this Contract and/or the relevant PO, and upon request,
the Seller shall, provide the Buyer with certificates of insurance from each
insurance carrier showing that the insurance required under this
Article 25 is in full force and effect. Prior to the earlier of
(a) the commencement of the Work at the Site or (b) the date of the first
Shipment of a Major Component, Equipment or Unit, the Buyer shall, upon
request, provide the Seller with certificates of insurance from each insurance
carrier showing that the insurance required under this Article 25 is in
full force and effect..
25.11 Cooperation with the
Buyer. At the Buyer’s request, the Seller shall
(a) cooperate with the Buyer and its representatives with respect to any
insurance claims made or to be made by the Buyer or the Seller with respect to
the Project and/or the Work; and (b), subject to Article 29, shall provide
to the Buyer all reasonable information relating to such claims.
26
ARTICLE
26. Taxes
26.1 Seller Taxes. The Seller shall be responsible for, and shall pay directly
when due and payable, any and all Seller Taxes. If the Buyer is required to
pay, or otherwise pays, any Seller Taxes, at the Buyer’s option, (a) the Buyer
may deduct or withhold such Seller Taxes from payments otherwise due to the
Seller, and the Buyer shall furnish to the Seller within one month thereafter
accurate official receipts from the appropriate governmental authority for each
item of deducted or withheld Seller Taxes; or (b) the Seller shall indemnify
the Buyer for any such payment of Seller Taxes within ten (10) days after
request by the Buyer. Buyer shall include proof of payment with such request
issued to the Seller.
26.2 Buyer Taxes. The Buyer shall be responsible for, and shall pay directly
when due and payable, any and all Buyer Taxes. All payments due and payable by
the Buyer to the Seller hereunder shall be made in the full amount of the
Contract Price or the Purchase Order Price, as applicable, free and clear of
all deductions and withholding, for Buyer Taxes. If the Buyer deducts or
withholds Buyer Taxes from payments otherwise due to the Seller, the Buyer
shall pay the Seller, within ten (10) days after request by the Seller,
additional amounts so as to cause the amounts actually received by the Seller,
net of deducted or withheld Buyer Taxes, to equal the full part of the Contract
Price or the Purchase Order Price, as applicable, that the Seller would
otherwise have received. If the Seller is required to pay Buyer Taxes, the
Buyer shall, promptly upon receipt of the Seller’s invoice for such Buyer Taxes
and proof of the Seller’s payment of such Buyer Taxes from the appropriate
governmental authority, pay to the Seller such Buyer Taxes.
26.3 Invoices and other Documents. The Seller shall issue an official value-added, sales (or
similar) tax invoice in addition to the price, in accordance with applicable
laws. When requested by either Party, the other Party shall furnish without
charge evidence of tax or duty exemption acceptable to the taxing or customs
authorities.
ARTICLE
27. Intellectual Property
27.1 Intellectual Property Indemnity. The Seller shall indemnify, defend and hold harmless, the
Buyer, its Affiliates and its and their officers, employees, agents, Financing
Parties, and Subcontractors against all liabilities, damages, losses, costs or
expenses (including, without limitation, attorneys’ fees and expenses) arising
out of any suit, claim, or proceeding (a “Claim”) alleging that the
Equipment or Services provided under this Contract violate or infringe any
Intellectual Property if: (a) the Buyer
promptly notifies the Seller in writing of the Claim; (b) gives the Seller sole
authority, at the Seller’s expense, using counsel reasonably acceptable to the
Buyer, to direct and control the defense and any settlement and compromise
negotiations; provided, however, that the Buyer
shall have the right to participate at the Seller’s expense in any such
settlement and compromise negotiations that would require any changes to the
Services or Equipment or that would require any action or restraint of action
by the Buyer and that the Buyer shall have the right to approve any settlement
that would require any changes to the Services or Equipment or that would
require any action or restraint of action by the Buyer (which consent shall not
be unreasonably withheld); and (c) the Buyer provides the Seller, at the Seller’s
expense, with such disclosure and assistance of the Buyer as may be reasonably
required to defend any such Claim. If the Seller does not promptly undertake
defense of any such claim after notice of same from the Buyer, the Buyer shall
be entitled but not required to undertake the defense of such claim and shall
have the right to direct and control the defense and any settlement and
compromise negotiations concerning such claim with counsel selected by the
Buyer and that the Seller shall have the
27
right to approve any settlement
(which consent shall not be unreasonably withheld); all at the Seller’s expense.
For the avoidance of doubt, the Buyer’s election to undertake or not to
undertake such defense will not limit in any way the Seller’s indemnification
obligations hereunder.
27.2 Exclusions. The Seller shall have no obligation or liability with
respect to any Claim based upon: (a) any
Equipment or Services that have been altered by the Buyer other than (i) as
approved by the Seller or (ii) as contemplated by the Technical Specifications
or the Documentation applicable to the Equipment or Services (it being
expressly understood that such Equipment and Services are contemplated to be
utilized in one or more combined systems using various configurations as
expressly communicated by the Buyer in writing to the Seller); (b) except as
permitted in (a), the combination or use of any Equipment or Services with
other products not provided by or specified by the Seller when the combination
is part of any allegedly infringing process except to the extent such
combination or use is expressly contemplated in the Technical Specifications or
Documentation; (c) failure of the Buyer to implement within a commercially
reasonable time after notice of the availability and infringement curing
purpose thereof any update provided by the Seller to the Buyer at no cost and,
at the Buyer’s election, either installed by the Seller at no cost or installed
by the Buyer at the Seller’s cost that would have prevented the Claim, which
update does not impair the functionality, capability, performance or other
commercially desirable features of any part of the system
27.3 Remedies.
If any Equipment or Service, or any portion of either, becomes the subject of a
Claim, the Seller may, at its option, (a) procure for the Buyer the right to
continue using such Equipment or Service, or any portion thereof; or (b) modify
or replace it in whole or in part with Equipment or Services that meet all
applicable Technical Specifications so as to make it non-infringing.
27.4 Sole Liability. This Article 27 states the Seller’s entire liability for
indemnification for any infringement or violation of the Intellectual Property
with respect to the Equipment and Services.
27.5 Intellectual Property Upon Termination. Upon termination of this Contract (other than for the Buyer’s
breach of Article 28), the Seller shall, upon request by the Buyer, provide to
the Buyer without charge a license to use, reproduce (to extent set forth below
in Article 28) and publicly display (subject to the confidentiality provisions
set forth below) and sub-license (to the extent set forth below) any
Intellectual Property of the Seller, its Subcontractors and Suppliers, to the
extent the Seller has the right to grant such sublicense rights, in completing,
operating and maintaining the Equipment, except that with respect to making
spare parts for the Equipment, the rights and obligations of the Parties shall
be as provided in Section 14.2.
ARTICLE
28. Software License
28.1 Grant of License. Subject to the terms of this Contract, the Seller grants to
the Buyer a perpetual, non-transferable (except as permitted in this Contract)
and nonexclusive license to use, perform, reproduce (to the extent set forth
below) and publicly display (subject to the confidentiality provisions set
forth below) the Software, and Documentation (the “License”), including
upgraded or modified versions provided by the Seller and to use the Third Party
Software all for the Buyer’s internal business purposes only. This License
includes the right of the Buyer to sub-license a third-party to exercise its
rights in connection with providing services to the Buyer for the Buyer’s
internal business purposes only (and not for the purpose of operating the
Software for an entity other than the Buyer). The Buyer may transfer all rights
under the License to another Person as part of the sale or assignment of the
Equipment with which it is used in accordance with Article 30. Only in the
event the Seller stops
28
providing Support for the Unit, the
License shall extend to the Source Code for all Software, and in such event the
Seller shall provide the Buyer, at no additional charge, a copy of the Sellers
then available version of the Source Code upon request.
28.2 Limitations. The Buyer has no right (a) except as otherwise permitted in
this Contract, (i) to lease, rent, transfer, distribute, sublicense, timeshare,
or allow third parties to access the Software, Third-Party Software or related
Documentation, nor (ii) to assign any rights under such License to a third
party without the Seller’s prior written agreement; (b) unless the Seller
discontinues Support, to disassemble, decompile, reverse engineer, or otherwise
attempt to reconstruct or discover the Source Code of the Software; (c) except
as otherwise permitted in this Contract, to pledge the Software or Third-Party
Software as collateral or otherwise, or encumber the Software or Third-Party
Software with any lien or security interest;(d)
to remove any product identification, copyright, trademark, or other notice
from the Software, Third-Party Software or related Documentation; or (e) except
as reasonably necessary to ensure the “interoperability” and compatibility of
the Software and Third Party Software with other systems of the Buyer or
entities providing services to the Buyer (“Integration”) or if the Seller
discontinues Support, to modify, adapt or translate the Software, or related
Documentation.
28.3 Third-Party Software. Certain software the Seller provides to the Buyer may
contain Third-Party Software (a list shall be provided upon execution of this
Contract), including but not limited to “open source” software. Use of the
Third-Party Software and its Source Code may be governed by separate copyright
notices and license provisions, which may be found or identified in the
Documentation or on the media delivered with the Software; those separate
notices and provisions are incorporated by reference into the License. The
Buyer shall not modify or combine the Software and/or any Third-Party Software
in any manner that could cause the Software or any modifications to it to
become subject to the terms of any license that applies to Third-Party Software.
All Third-Party Software is bundled with the Equipment and licensed for use
with the Equipment only.
28.4 Copies.
Unless otherwise agreed to by the Seller, the Buyer only has the right to
install and use such number of copies of the Software as are contemplated in
the Technical Specifications and Documentation together with such additional
copies as are necessary to maintain the hot back-up and spare capabilities
reasonably deemed necessary by the Buyer.
28.5 Backup.
The Buyer may make copies of the Software, and related Documentation for backup
purposes only, in machine-readable form, in such number as are necessary to
allow a re-installation on replacement Equipment. The Buyer must reproduce and
include all proprietary rights and copyright notices on any backup copies. Except
as authorized in the License, no copies of the Software, Third-Party Software
or related Documentation may be made by the Buyer or any third party, except
that the Buyer may print on-line Software documentation for its own internal
use.
28.6 Support Services; Upgrades. The License does not obligate the Seller to provide
maintenance and support on any Software or Third Party Software, other than as
set forth in Sections 14.2 and 22.4.
28.7 Term and Termination. The License is effective until terminated for material
breach of this Article 28 in accordance with the terms of this Contract. The
Seller may terminate the License (a) immediately if the Buyer fails to comply
with any of its material terms after notice of such failure if such
non-compliance is not corrected within a reasonable period of time or (b) if
correction is not possible (e.g., in the case of a breach of confidentiality),
if the Buyer fails to make a reasonable showing of the
29
steps it has taken to avoid such
non-compliance in the future. Upon termination, the Buyer shall (y) stop using
the Software, Third-Party Software and related Documentation, and (z) certify
to the Seller within one (1) month of the termination that the Buyer has
destroyed or returned to the Seller all copies of the Software, Third-Party
Software or related Documentation.
28.8 Ownership.
All Software, Third-Party Software and related Documentation are licensed and
not sold. The Seller and its Suppliers own all proprietary rights to all of it,
including, but not limited to, any Intellectual Property rights in and to the
Software, Third-Party Software and related Documentation, including any
Derivative Work, and any corrections, bug fixes, and updates to such Software,
Third-Party Software, related Documentation and Derivative Work. Seller shall
also own all proprietary rights to any Derivative Work and any corrections, bug
fixes and updates thereto, and the Buyer shall have only a “right to use”
license to any Derivative Work.
ARTICLE
29. Proprietary Information
29.1 Information Subject to Restriction. In connection with this Contract, the Seller and the Buyer
(as to information disclosed, the “Disclosing Party”) may each provide
the other Party (as to information received, the “Receiving Party”) with
“Confidential Information.” “Confidential Information” means (a)
all pricing for Equipment and Services; (b) all terms of this Contract; (c) any
information (“Personal Data”) relating specifically and uniquely to an
identified or identifiable natural person (“Data Subject”); (d) all
information that is designated in writing as “confidential” or “proprietary” by
the Disclosing Party at the time of written disclosure; (e) all information
that is orally designated as “confidential” or “proprietary” by the Disclosing
Party at the time of oral disclosure and is confirmed to be “confidential” or “proprietary”
in writing within ten (10) days after oral disclosure; and (f) information
embedded in the Software (including but not limited to source code and training
materials), the Documentation and Third Party Software. The obligations of this
Article 29 shall not apply as to any portion of the Confidential Information
that: (i) is or becomes generally available to the public other than from
disclosure by the Receiving Party, its representatives or its Affiliates; (ii)
is or becomes available to the Receiving Party or its representatives or
Affiliates on a non-confidential basis from a source other than the Disclosing
Party when the source is not, to the best of the Receiving Party’s knowledge,
subject to a confidentiality obligation to the Disclosing Party; (iii) is
independently developed by the Receiving Party, its representatives or
Affiliates, without reference to Confidential Information; (iv) is required to
be disclosed by law, a valid legal process or a government agency; or (v) is
approved for disclosure in writing by an authorized representative of the
Disclosing Party.
29.2 Obligations of Receiving Party. The Receiving Party shall: (a) use the Confidential Information
only in connection with this Contract and the use(s) and maintenance of
Equipment and Services contemplated by this Contract; (b) take reasonable
measures to prevent disclosure of the Confidential Information, except to its
employees, agents, attorneys, accountants, Affiliates, other contractors
working on a Project, interconnection suppliers, operators, equity investors
and Financing Parties who have a need to know for the Receiving Party to
perform its obligations under the Contract or to use and maintain Equipment or
Services; (c) with respect to Personal Data, comply with all applicable laws
and regulations relating to such Personal Data, including, but not limited to,
providing notices to or obtaining consents from Data Subjects when required; (d)
if the Buyer is the Receiving Party, not disclose the Confidential Information
to another manufacturer of wind power generation equipment unless permitted
under Sections 14.2 and/or 21.4 and/or to a third party providing services for
integration of generation of control systems for regional or other consolidate
operation or in the event of turbine from another manufacturer or wind power
generation equipment, except in no event to
30
other competitors of the Seller for
wind power generation equipment. The Receiving Party shall obtain a written
commitment from any recipient of Confidential Information to comply with the
terms of this Section 29.2. Except in the case of disclosure to the Receiving
Party’s employees, agents, attorneys, accountants, Affiliates, other
contractors working on a Project, interconnection suppliers, operators, equity
investors and Financing Parties who have a need to know to perform its
obligations under the Contract or to use and maintain Equipment or Services,
Confidential Information shall not be reproduced without the Disclosing Party’s
written consent. After the termination or expiration of the Contract, the
Receiving Party shall return or destroy at its option all copies of Confidential
Information to the Disclosing Party upon request except to the extent that the
Contract entitles the Receiving Party to retain the Confidential Information,
the Confidential Information is required in connection with the resolution of a
claim or dispute between the Parties, or the Confidential Information is
necessary for the continued operation or maintenance of one or more Project.
29.3 Design Materials. Any drawings, specifications, designs, plans and other
documents prepared by or on behalf of the Seller and/or its Subcontractors in
connection with the Equipment or the Services (collectively, to the extent in
the possession and control of the Seller, the “Design Materials”), and
all intellectual property rights, if any, relating to the Design Materials or
the contents of or concepts embodied in the Design Materials, are and shall
remain the exclusive property of the Seller or the Subcontractors, as the case
may be. The Seller hereby grants for itself, and to the extent it has the right
to so grant from Subcontractors, for its Subcontractors, whichever is
appropriate, a paid-up, non-exclusive, license (the “Design Materials
License”) for the life of the Equipment for the Buyer to use, reproduce and
have reproduced the Seller’s and its Subcontractors’ proprietary information in
such Design Materials, subject to the confidentiality obligation in Section
29.2 above and the following: (a) The Buyer may only use such Design Materials
for the operation, maintenance and repair of the Equipment, in accordance with
the efforts specified in the Contract, after Commercial Operation, but not for
manufacturing spares or replacement components, equipment, etc. for the Project
or any third party (other than as set forth in Section 14.2), or for the
purpose of developing derivative information or products of any nature; and (b)
the Design Materials License granted under this Section 29.3 is personal to the
Buyer and shall apply to any of the Persons listed in Section 29.2(b) subject
to the restrictions set forth in Section 29.2.
The Seller reserves all patent rights, and nothing in this
Section 29.3 shall be deemed to grant a license directly or by implication,
estoppel or otherwise under any patent or patent application related to any
information to which this Contract applies.
29.4 Disclosure Pursuant to Legal Process. If the Receiving Party or any of its representatives or
Affiliates is required by law, legal process or a government agency to disclose
any Confidential Information, the Receiving Party shall provide the Disclosing
Party with prompt written notice, and the Disclosing Party may seek an
appropriate protective order or agency decision or waive compliance by the
Receiving Party with this Article 29.
29.5 Intellectual Property. Nothing in this Article 29 grants the Receiving Party any
license under any invention, patent, trademark or copyright now or later owned
or controlled by the Disclosing Party.
29.6 Disclosure. Neither Party shall disclose Confidential Information to
the other Party unless it is required to do so to enable it to perform work
under the Contract. If either Party does disclose Confidential Information to
the other Party, the Disclosing Party warrants that it has the right to
31
disclose the information, and the
Disclosing Party shall indemnify and hold the other Party harmless against any
claims or damages resulting solely from such Party’s improper disclosure.
29.7 Equitable Relief. The Software, Documentation and Third Party Software
include commercially valuable, substantial trade secrets, the design and
development of which reflect the efforts of skilled development experts and
investment of considerable amounts of time and money. The Buyer acknowledges
that any use of the Software, Documentation or Third-Party Software in a manner
inconsistent with the License will cause immediate irreparable harm to the
Seller (or its Suppliers) for which there is no adequate remedy at law. The
Buyer agrees that the Seller (or its Suppliers) shall be entitled to immediate
and permanent injunctive relief from a court of competent jurisdiction in the
event of any such breach by the Buyer. The Parties agree and stipulate that the
Seller shall be entitled to injunctive relief without posting of a bond or
other security; except that if the posting of a bond is a prerequisite to
obtaining injunctive relief, then a bond in an amount equivalent to U.S. $1,000
shall be sufficient. The confidentiality obligations set forth in this Contract
with respect to the Software and Documentation shall expire ten (10) years
after termination of this Contract.
29.8 Term.
As to any individual item of Confidential Information, the restrictions of this
Article 29 shall expire on the earlier of (a) five (5) years after the date of
disclosure, and (b) three (3) years after termination or expiration of this
Contract
ARTICLE
30. Assignment
30.1 Eligible Assignees. An “Eligible Assignee” is: (a) an Affiliate of the Buyer,
or (b) an engineering or construction contractor under contract with the Buyer
for the installation of the Equipment.
30.2 Buyer’s Right to Assign. The Buyer may assign some or all of its rights, and
delegate some or all of its obligations, under this Contract (including, with
limitation, the License and the Design Materials License), to an Eligible
Assignee without the Seller’s consent; provided, however,
that: (a) the Buyer shall notify the
Seller of its intent to assign no less than ten (10) days prior to the
execution of any such assignment; (b) the Buyer shall either (i) (subject to
the limitations set forth in Article 24) guarantee the obligations of the
assignee by executing a guaranty in a form acceptable to the Seller or (ii)
retain its obligations under any payment and indemnity provisions of the Contract;
(c) the first assignee may not further assign or delegate any rights or
obligations hereunder except to the original Buyer, unless the first assignee
is an Affiliate of the Buyer, in which case such assignee (and its assignees
who are Affiliates of the Buyer) may further assign or delegate any rights or
obligations to one or more Affiliate(s) of the Buyer (including the original
Buyer); and (d) the Buyer shall in no event assign to its engineering or
construction contractor the right to receive liquidated damages under this
Contract. In addition, the Buyer may assign some or all of its rights, and
delegate some or all of its obligations, under this Contract to any other third
party subject to the prior written consent of the Seller (such consent not to
be unreasonably withheld).
30.3 Collateral Assignment. Notwithstanding
the requirements of Article 28 and Section 30.2, the Buyer may also, without
the Seller’s consent, assign a collateral interest in this Contract,
(including, with limitation, the License and the Design Materials License, to a
Financing Party as collateral security for a loan, or in connection with any
lease or any other financing arrangement, for the acquisition of the Equipment,
the performance of the Services and/or the development of the Projects; provided, however, that the Buyer and such Financing Party
agree that any foreclosure on such collateral
32
interest, or assignment in lieu of
foreclosure, shall occur only as the result of the exercise by the Financing
Party of its remedies under the financing agreements relative to a default,
bankruptcy or liquidation of the Buyer. A Financing Party may further assign
such collateral interest in this Contract, including, without limitation, the
License, without the Seller’s consent, to one or more of its designees at or
after the time of such foreclosure or assignment in lieu of foreclosure.
30.4 Cooperation with Financing; Consent.The Seller
shall cooperate with the Buyer, its Affiliates and any Financing Parties from
time to time, including, without limitation, by furnishing such documentation
and information as such Financing Parties may reasonably request and by
entering into a consent and agreement with such Financing Parties in connection
with any collateral assignment, certificates and other ancillary documents on
such terms as may be customary under the circumstances and as shall be
reasonably required by such Financing Parties, including without limitation,
the terms set forth in Section 21.7 hereof. In addition, the Parties agree
that, should any Financing Party require changes to the form of this Contact,
the Parties will cooperate and negotiate in good faith to reach agreement to
amend the Contract to the extent necessary to obtain financing in a manner that
does not materially and adversely affect the Parties’ respective economic
positions in the transaction.
30.5 Seller’s Right to Assign. The Seller may assign all of its rights in whole or in part
and delegate its obligations under this Contract to any Affiliate; provided, however, that (a) the Seller shall notify the
Buyer of its intent to assign no less than ten (10) days prior to the execution
of any such assignment; (b) the General Electric Company shall (subject to the
limitations set forth in Article 24) guarantee the obligations of the assignee
by executing a guaranty in a form acceptable to the Buyer; (c) such Affiliate
shall possess sufficient technical expertise and experience to perform the
Seller’s obligations under this Contract in the reasonable opinion of the
Buyer; and (d) General Electric Company shall remain the single point of
contact for the Buyer under this Contract.
30.6 Conditions. Any assignment of this Contract shall be subject to all
limitations of liability contained in this Contract. Neither Party may assign
this Contract except in accordance with this Section 30.6. Any purported
assignment not in accordance with this Section 30.6 shall be void and without
effect.
30.7 Successors and Assigns. All of the rights, benefits, duties, liabilities and
obligations of the Parties hereto shall inure to the benefit of, and be binding
upon, their respective successors and permitted assigns.
ARTICLE
31. Representations and Warranties
31.1 Seller’s Representations. The Seller represents to the
Buyer that, as of the date hereof:
31.1.1 Organization
and Qualification. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York, has the lawful power to engage in the
business it presently conducts and contemplates conducting, and is duly
licensed or qualified and in good standing as a foreign corporation in each
jurisdiction wherein the nature of the business transacted by it makes such
licensing or qualification necessary.
31.1.2 Power
and Authority. The Seller has the
authority to execute and carry out this Contract and to perform its obligations
hereunder and all such actions have been duly authorized by all necessary
corporate action on its part.
33
31.1.3 No
Conflict. The execution, delivery and
performance of this Contract shall not conflict with, result in the breach of,
constitute a default under or accelerate performance required by any of the
terms of the articles of incorporation or the bylaws of the Seller or any
applicable Laws or any material covenant, agreement, understanding, decree,
indenture, instrument or order to which the Seller is a party or by which the
Seller or any of its properties or assets is bound or affected.
31.1.4 Validity
and Binding Effect. This
Contract has been duly and validly executed and delivered by the Seller. This
Contract constitutes a legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms, except to the extent that its
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by general principles of equity. To the best of the Seller’s current knowledge,
no authorization, approval, exemption or consent by any governmental or public
body or authority is required in connection with the authorization, execution,
delivery and carrying out of the terms of this Contract.
31.1.5 Patents,
Licenses, Franchises. The
Seller owns or possesses all the patents, trademarks, service marks, trade
names, copyrights, licenses, franchises, permits and rights with respect to the
foregoing necessary to perform the Work and to carry on its business as
presently conducted and presently planned to be conducted without conflict with
the rights of others.
31.1.6 Compliance
with Laws. The Seller has complied
with all applicable Laws such that it has not been subject to any fines,
penalties, injunctive relief or criminal liabilities that in the aggregate have
materially affected or may materially affect the business operations or
financial condition of the Seller or its ability to perform the Work.
31.1.7 Seller’s
Solvency. The Seller is now, and after
giving effect to this Contract, shall be, in a solvent condition.
31.1.8 Seller
Qualified. The Seller is fully
experienced and properly licensed, equipped, and in all ways competent and
qualified to perform all aspects of the Work in accordance with the terms set
forth herein.
31.1.9 Licenses. The Seller is the holder of all necessary governmental
consents, licenses, permits or other authorizations required under the
applicable Laws to operate or conduct its business as contemplated herein.
31.2 Buyer’s Representations. The Buyer represents to the Seller that, as
of the date hereof:
31.2.1 Organization
and Qualification. The Buyer
is a Delaware limited liability company duly formed and validly existing and in
good standing under the laws of the State of Delaware, and has the lawful
authority to engage in the business it presently conducts and contemplates
conducting.
31.2.2 Power
and Authority. The Buyer has the
authority to make and carry out this Contract and to perform its obligations
hereunder.
31.2.3 No
Conflict. The execution, delivery and
performance of this Contract shall not conflict with, result in the breach of,
constitute a default under or accelerate performance required by any of the
terms of the Buyer’s constituent documents or any applicable Laws or any material
covenant,
34
agreement, understanding, decree,
indenture, instrument or order to which the Buyer is a party or by which the
Buyer or any of its properties or assets is bound or affected.
31.2.4 Validity
and Binding Effect. This
Contract has been duly and validly executed and delivered by the Buyer. This
Contract constitutes a legal, valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, except to the extent
that its enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally or by general principles of equity. To the best of the
Buyer’s current knowledge, no authorization, approval, exemption or consent by
any governmental or public body or authority is required in connection with the
authorization, execution, delivery and carrying out of the terms of this
Contract.
31.2.5 Compliance
with Laws. The Buyer has complied
with all applicable Laws such that it has not been subject to any fines,
penalties, injunctive relief or criminal liabilities which in the aggregate
have materially affected or may materially affect the business operations or
financial condition of the Seller or its ability to perform the Work.
31.2.6 Buyer’s
Solvency. The Buyer is now, and after
giving effect to this Contract shall be, in a solvent condition.
ARTICLE
32. Governing Law; Disputes
32.1 Governing Law.This
Contract shall be construed and interpreted in accordance with the laws of the
State of New York, excluding the conflict of law rules (other than Section
5-1401 of the New York General Obligations Law).
32.2 Referral to Senior Management. In the event of any controversy, dispute or difference
between the Parties to this Contract, either Party may provide notice of the
dispute to the other Party. If the controversy, dispute or difference is not
amicably settled by the Parties within fifteen (15) days following notice of
dispute, it shall be referred to senior management of the Parties for
resolution. In the event the controversy, dispute or difference has not been
resolved within thirty (30) days following referral to senior management (or
such longer period as the Parties may mutually agree), then either Party may
pursue its remedies at law.
32.3 Venue.
Any legal action or proceeding with respect to this Contract shall be brought
in the United States District Court for the Southern District of New York or,
if such court lacks jurisdiction, in the Supreme Court of the State of New York
in New York County. Each of the Parties hereby accepts and consents to,
generally and unconditionally, the jurisdiction of the aforesaid courts and
appellate courts from any appeal thereof. Each of the Parties irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Party at the address first set forth
in Section 34.12. Each of the Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Contract brought in the courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum.
35
32.4 Continuation of Work. Pending
final resolution of any controversy, dispute or difference, the Parties shall
continue to fulfill their respective obligations under this Contract.
ARTICLE
33. Miscellaneous
33.1 Rules of Interpretation; Definitions.
33.1.1 Rules
of Interpretation. When used
in this Contract: (a) all terms defined in this Contract in the singular shall
have the same meaning when used in the plural and vice versa; (b) the words “hereof”,
“herein”, and “hereunder” and words of similar import shall refer to this
Contract as a whole and not any particular provision of this Contract, and
article, section, subsection, schedule, attachment, exhibit and appendix
references are to this Contract unless otherwise specified; (c) all terms defined
in this Contract shall have the defined meanings when used in any other
document made or delivered pursuant hereto; (d) “or” is not exclusive; (e) a
reference to a Law includes any amendment or modification to such Law; (f) a
reference to a Person includes its permitted assigns and successors; (g) a
reference to an agreement, instrument or document shall include such agreement,
instrument or document as the same may be amended, restated, modified or
supplemented from time to time in accordance with its terms and as permitted
thereby; (h) the term “including” means “including, without limitation”; (i)
each reference to “days” shall mean calendar days, unless the term “Business
Days” is used; and (j) the article, section and condition headings have been
inserted for convenience of reference only and shall not in any manner affect
the construction, meaning or effect of anything herein contained nor govern the
rights and liabilities of the Parties.
33.1.2 Definitions. Capitalized terms used in this Contract shall have the
meanings set forth in Schedule I, unless in any particular instance it
is expressly indicated otherwise.
33.2 Order of Precedence. The Contract consists of the body of this Contract, its
Schedules, Attachments, Exhibits, Appendices, and any Purchase Orders issued
pursuant to the Contract. All parts of the Contract are intended to be
complementary and what is set forth in any one document is as binding as if set
forth in each document. In the event of any conflict, discrepancy, error or
omission among any parts of the Contract, either Party shall immediately notify
the other Party and both Parties shall decide how to remedy such conflict,
discrepancy, error or omission. If the Parties cannot resolve any such
conflict, discrepancy, error or omission by mutual agreement, the matter shall
be submitted for resolution in accordance with Article 32. Subject to the
preceding three sentences, the parts of the Contract should take the following
order of precedence:
33.2.1 Purchase
Order (together with its exhibits and schedules);
33.2.2 the
body of this Contract (Articles 1 through 33) and Schedule I “Definitions”;
33.3 Entire Agreement. This
Contract represents the entire agreement between the Parties and supersedes in
its entirety all prior agreements concerning the subject matter hereof. Any
oral or
36
written representation, warranty,
course of dealing, or trade usage not contained or referenced herein shall not
be binding on either Party. Each Party agrees that it has not relied on, or
been induced by, any representations of the other Party not contained in this
Contract.
33.4 No Joint Venture. Nothing contained in this Contract shall be construed as
constituting a joint venture or partnership between the Seller and the Buyer.
33.5 Independent Contractor. The Seller shall be an independent contractor with respect
to each Project, each part thereof and the Work performed pursuant to this
Contract, and neither the Seller, its Subcontractors, its Suppliers, nor the
employees of any of them, shall be deemed to be agents, representatives,
employees or servants of the Buyer in the performance of the Work, or any part
thereof. The Buyer shall not have the right to any actual, potential or other
control over the methods and means by which the Seller or any of its agents,
representatives, Subcontractors, Suppliers or employees conducts its independent
business operations. The Parties covenant and agree that in the performance of
the Work by the Seller, the Seller shall not perform any act or make any
representation to any Person to the effect that the Seller or any of its
agents, representatives, Subcontractors or Suppliers, is the agent of the
Buyer.
33.6 Third-Party Beneficiaries. Except as expressly provided herein with respect to the
Financing Parties, these provisions are for the benefit of the Parties hereto
and not for any other third party.
33.7 Amendments. No amendments, modifications, revision or other change of
this Contract shall be valid unless evidenced in writing and signed by a duly
authorized representative of both Parties.
33.8 Waiver.
No waiver of any of the terms, provisions or covenants of this Contract shall
be valid or binding unless set forth in writing and duly executed by the Party
against whom enforcement of the waiver is sought. It is understood and agreed
that any delay, waiver or omission by the Buyer or the Seller in any of the
terms, provisions or covenants of this Contract shall not be construed to be a
waiver by the Buyer or the Seller of any subsequent breach or default of the
same or other terms, provisions or covenants on the part of the Seller or the
Buyer.
33.9 Severability. In the event that any of the provisions, or portions or
applications thereof, of this Contract is held to be unenforceable or invalid
by any court of competent jurisdiction, the Buyer and the Seller shall
negotiate an equitable adjustment in the provisions of this Contract with a
view toward effecting the purposes of this Contract, and the validity and
enforceability of the remaining provisions, or portions or applications
thereof, shall not be affected.
33.10 Records.The Seller
shall keep and maintain full, complete and detailed records pertaining to each
Project, including copies of all contracts with its Subcontractors and
Suppliers, for a period of two (2) years following Commercial Operation of such
Project.
33.11 Notice.Any notice
required or permitted to be given by the Buyer to the Seller hereunder shall be
in writing and shall be addressed to:
All
notices shall be delivered (a) in person to the address listed above, (b) via
certified mail with a return receipt requested in a securely sealed envelope,
or (c) via telephonic document transfer, and such notices shall be effective
when sent if delivered by method (a) or (c) or three (3) days after being
properly mailed as provided in method (b) above, in each case to the address
specified above; provided, however, that service
by method (c) after 5:00 p.m. local time of the recipient shall be deemed
received on the following Business Day. The Parties may designate, from time to
time, another address or office to which notices may be given pursuant to this
Contract by following the procedure in this subparagraph.
33.12 Electronic Communication. Throughout the term of this Contract
(including the Warranty Period), the Buyer shall provide a broadband connection
exclusively for Seller’s required bandwidth of 1.5 MBPS to each Project for
remote data monitoring.
33.13 Further Assurances. The Seller and the Buyer agree to provide
such information, execute and deliver any instruments and documents and to take
such other actions as may be necessary or reasonably requested by the other
Party which are not inconsistent with the provisions of this
38
Contract and which do not involve the
assumption of obligations other than those provided for in this Contract, in
order to give full effect to this Contract and to carry out the intent of this
Contract.
33.14 Survival. The provisions of Article 16, 23, 24, 26, 28, 29, 30, 32, 33,
and Sections 14.2, 15.3, 21.3, 21.4 and 21.6 shall survive termination of this
Contract.
33.15 Counterparts. This Contract may be signed in any number of
counterparts and each counterpart shall represent a fully executed original as
if signed by both Parties.
[Signature
Page to Follow]
39
IN WITNESS WHEREOF the Parties have caused this Contract to be
executed by their authorized representatives on the date first above written.
(a) “Acceptance Certificate” shall have
the meaning ascribed in Section 8.5.
(b) “Affiliate” shall mean any entity that
directly or indirectly controls, is controlled by, or is under common control
with a Person. For the purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of the controlled entity, whether
through the ownership of voting securities or partnership or other ownership
interests or by contract or otherwise.
(c) “Balance of Plant” or “BOP”
shall mean any items of Equipment that are not associated with a particular
wind turbine and do not constitute part of a Unit.
(d) “Business Day” shall mean any day,
other than a Saturday or Sunday or a day on which national commercial banking
institutions in New York, New York are required by law to close.
(e) “Buyer” shall mean the entity so
identified in the recitals to the Contract.
(f) “Buyer Taxes” shall mean all taxes,
duties, fees, or other charges of any nature (including, but not limited to, ad valorem,
consumption, excise, franchise, gross receipts, license, property, sales,
stamp, storage, transfer, turnover, use, or value-added taxes, and any and all
items of withholding, deficiency, penalty, addition to tax, interest, or
assessment related thereto), other than Seller Taxes, imposed by any
governmental authority of any country on the Seller or its employees, its
Subcontractors or Suppliers due to the execution of any agreement, including
the Contract, or the performance of or payment for Work under the Contract.
(g) “Change in Codes and Standards” shall
mean a change in any code or standard identified in Appendix A after the date
of this Contract that imposes any mandatory requirements on the Seller’s
manufacturing, fabrication, production, assembly, shipping or transporting
processes or activities in respect of this Contract and that was not caused
directly or indirectly by the actions or inactions of the Seller.
(h) “Change in Law” shall mean a change to
a Law, or a change in the interpretation or application of a Law by the
cognizant executive or judicial authorities after the date of this Contract; provided, however, that Change in Law shall
not include (i) a change in federal, state, or local income tax;
(ii) an enactment, adoption, promulgation, or change in the interpretation
or application of a Law that is published prior to the date hereof but that
becomes effective after the date hereof; or (iii) an enactment, adoption,
promulgation, or change in the interpretation or application of a Law that
affects the Seller’s manufacturing, fabrication, production, assembly, shipping
or transporting processes or activities.
(i) “Change Order” shall mean a written
agreement to change the Equipment or Services which describes the change,
identifies the writing as a Change Order, sets out adjustments, if any, in the
Contract and/or the Purchase Order Price and any schedule or dates for
performance, and is signed by both Parties.
41
(j) “Claim” shall have the meaning
ascribed in Section 27.1.
(k) “Closest Common Carrier Point” shall mean the
nearest point to the unit site pad accessible to permitted loads, without
Transportation Route modification(s), improvement(s) or requiring road
bonding, by standard highway configured vehicles used for transportation of
wind turbine components.
(l) “Commercial Operation” shall have the
meaning ascribed in Section 8.2, with respect to each Unit or a Project,
as applicable.
(m) “Commercial Operation Certificate”
shall have the meaning ascribed in Section 8.2.
(n) “Confidential Information” shall have
the meaning ascribed in Section 29.1.
(o) “Contract” shall have the meaning
ascribed in the preliminary statements hereto and shall include all the parts
listed in Section 33.2.
(p) “Contract Currency” shall have the
meaning ascribed in Section 11.1.
(q) “Contract Price” shall mean the total
firm price as stated in Section 11.1, as such price may be adjusted from
time to time in accordance with the Contract.
(r) “Converter Commissioning Test (CCT)”
shall have the meaning ascribed in Appendix A.
(s) “Data Subject” shall have the meaning
ascribed in Section 29.1.
(t) “Default Notice” shall have the
meaning ascribed in Section 21.7.
(u) “Default Rate” shall mean an interest
rate equal to (i) the “Prime Rate” plus two per cent 2%), or (ii) the maximum rate permitted
by applicable Law, whichever is less.
(v) “Delivery” shall mean delivery of the
Equipment to the earlier of 1) Shipment to Storage or the Closest Common
Carrier Point to the Project Site.
(w) “Derivative Work” shall mean a
computer software product developed by a licensee, which software product
incorporates all or portions of Seller Software.
(x) “Design Materials” shall have the
meaning ascribed in Section 29.3.
(y) “Disclosing Party” shall have the
meaning ascribed in Section 29.1.
(z) “Documentation” shall mean all written
material in any form (except training materials) referencing the Software and
Third-Party Software.
(aa) “Effective Date”
shall have the meaning ascribed in Article 1.
(bb) “Eligible Assignee” shall have the
meaning ascribed in Section 30.1.
(cc) “Equipment” shall mean electrical or
mechanical apparatus to be engineered and procured by the Seller and
incorporated into a Project, and consisting of one or more Units and any BOP
provided by the Seller, together with all Software and Third Party Software
provided by the Seller pursuant to this Contract, all as described in Attachment
2 to the Contract and as more fully described in Appendix A.
(dd) “Error” shall have the meaning
ascribed in Section 16.7.
(ee) “Field Commissioning and Acceptance Test
(FCAT)” shall have the meaning ascribed in Appendix A.
42
(ff) “Final Acceptance” shall mean that a
Project has been accepted in accordance with Section 8.5.
(gg) “Financing Party” shall mean
(i) any lender providing construction, interim or long-term financing
(including any refinancing thereof) for the Equipment, a Project or any asset
related thereto, any lessor under a leveraged lease transaction, or any trustee
or agent acting on their behalf (including, without limitation, the independent
engineer selected by such Persons, if any); (ii) any Person to which the
Buyer grants a security interest in the Equipment; and (iii) any equity
investor providing financing or refinancing for the Equipment, a Project or any
asset related thereto, or any trustee, agent, or independent engineer acting on
its behalf.
(hh) “Hazardous Substance” shall mean any
hazardous or toxic substance or pollutant which, pursuant to any applicable
Law, has been determined, or at any future time may be determined, to be
hazardous, toxic or dangerous to human health or the environment,
including but not limited to any hazardous substance under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (42 U.S.C.A.
§ 9601 et seq.), any solid waste under the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.A. § 6901 et seq.), or any
pollutant, waste or toxic substance under the Clean Air Act, as amended (42
U.S.C.A. § 7401 et seq.), the Clean Water Act, as amended (33 U.S.C.A. §
1251 et seq.), the Safe Drinking Water Act, as amended (42 U.S.C.A. §
3001 etseq.), or the Toxic Substances Control Act, as amended
(15 U.S.C.A. § 2601 etseq.), and any applicable state laws.
(ii) “Indemnified Party” shall have the
meaning ascribed in Section 23.1.
(jj) “Indemnifying Party” shall have the
meaning ascribed in Section 23.1.
(kk) “Installation Manual” shall mean the
Unit-specific written instructions provided by the Seller at least ninety (90)
days prior to Delivery of each Unit which are used by the Buyer during
unloading and installation of such Unit to handle various installations.
(ll) “Intellectual Property” shall mean the
collective reference to all intellectual property, whether arising under
federal, state, multinational or foreign Laws or otherwise, including, without
limitation, copyrights, patents (including pending and future continuations and
continuations in part, divisions and their continuations and continuations in
part, reissues, reexaminations and foreign counterparts), trademarks,
service-marks, know-how and processes, formulas, trade secrets, licenses of any
of the foregoing, and all rights to sue at law or equity for any infringement
or other impairment thereof, including the right to receive all proceeds and damages
therefrom.
(mm) “Laws” shall mean those laws,
regulations, decrees or similar orders with mandatory effect issued by the
legislative, judicial or executive branch of any relevant government or
supranational body, as interpreted and applied, to the extent such laws,
regulations, decrees or similar orders are applicable to the Contract and/or
the Work.
(nn) “License” shall have the meaning ascribed in Section 28.1.
(oo) “Major Components” shall mean, with
respect to a wind turbine, the tower, the rotor, the gear box, the hub, the
blades, the low voltage distribution panel and the converter.
(pp) “Mechanical Completion” shall mean
that (i) all Equipment comprising the relevant Unit (including all
materials and components but excluding minor or Punch List items) shall have
43
been installed, erected, aligned, and adjusted at
the Site in a non-operating condition, in accordance with Appendix A,
(ii) backfeed power and grid connection for the relevant Unit has been
provided or alternative commissioning power have been made available by the
Buyer, (iii) a complete fiber optic network connection for the relevant
Unit compliant with the minimum SCADA requirements established by the Seller
has been provided, (iv) the relevant Unit is ready for initial operation
in a safe manner, and (v) the Buyer has provided the Seller with a
Mechanical Completion Certificate.
(qq) “Mechanical Completion Certificate”
shall have the meaning ascribed in Section 8.1.
(rr) “Nominated Units” shall have the
meaning ascribed in Section 18.2 and set forth in further detail in Appendix
A.
(ss) “Option” shall have the meaning
ascribed in Section 2.3.
(tt) “Owner” shall mean that Person who
directly owns a Project.
(uu) “Party” and “Parties” shall
have the meanings ascribed in the recitals to the Contract.
(vv) “Payment Schedule” shall mean the
schedule of payments set forth in Attachment 3.
(ww) “Performance Schedule” shall mean the
schedule of milestones described in Attachment 4.
(xx) “Person” shall mean any individual,
corporation, partnership, limited liability company, association, joint-stock
company, joint venture, trust, unincorporated organization or governmental
authority.
(yy) “Personal Data” shall have the meaning
ascribed in Section 29.1.
(zz) “Power Curve Guarantee” shall have the
meaning ascribed in Section 18.1.
(aaa) “Product Support Services” shall mean
services provided by technical advisors of the Seller required to execute
Seller’s Scope of Work set forth in Attachment 2 as it pertains to the
act or supervision of unloading, installation, start-up, testing, commissioning
and initial operation and maintenance ofany
of the Major Components, other Equipment, Base GE SCADA, Base Wind Farm
Management System or any other Options (if selected by the Buyer).
(bbb) “Progress Payments” shall mean those
payments which are not associated with milestone events, as described in Attachment
3.
(ccc) “Project” shall have the meaning
ascribed in the Recitals of the Contract.
(ddd) “Prudent Engineering Practices” shall
mean those practices, methods, equipment, specifications and standards of
safety and performance, as the same may change from time to time, as are
generally used by professional construction and engineering firms performing
engineering, procurement and construction services on wind energy facilities of
the type, size and location similar to the Projects which, in the exercise of
reasonable judgment and in the light of the facts known at the time the
decision was made, are considered good, safe and prudent practice in connection
with the engineering, procurement and construction of wind energy generating
and operating equipment and other electrical equipment, facilities and
improvements, and as are in accordance with Law and generally accepted national
standards of professional care, skill, diligence and competence applicable to
engineering, procurement, construction and project management practices.
44
(eee) “Prudent Industry Practices” means
those practices, methods, equipment, specifications and standards of safety and
performance, as the same may be changed from time to time, as are generally
used in the operation and maintenance of privately owned wind generated electric
power generation facilities similar to the Projects, which in the exercise of
reasonable judgment and in light of the facts known at the time the decision
was made, are considered good, safe and prudent practice in connection with the
operation and maintenance of wind generation facilities similar to the
Projects, and as are in accordance with Law and generally accepted national
standards of professional care, skill, diligence and competence applicable to
operation and maintenance practices.
(fff) “Punch List” shall mean the list
prepared (and periodically revised as necessary) by the Seller and agreed by
the Buyer, which list shall set forth certain items of Work with respect to a
specific Project that do not materially affect any Unit’s operability or
achievement of Commercial Operation, but which must be performed to ensure that
such Unit complies with the standards and requirements set forth in the
Contract and the PO.
(ggg) “Purchase Order” or “PO” shall
have the meaning ascribed in Section 2.2.
(ggg) “Purchase Order Price” shall have the meaning ascribed in
Section 11.1.
(hhh) “Receiving Party” shall have the meaning ascribed in
Section 29.1.
(iii) “Release” means the release,
threatened release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migrating, including from prior
spills, into the indoor or outdoor environment of any Hazardous Substance
(including, without limitation, the abandonment or discarding or barrels,
drums, or other containers containing any such Hazardous Substance through, at,
on, above, under, around or in the air, soil, surface water, or groundwater).
(jjj) “Scheduled Major Component Dates” shall have the meaning ascribed in
Section 2.2 and Attachment 1.
(kkk) “Schedule of Options” shall mean the schedule described in Table
1A and Table 2 of Attachment 2.
(lll) “Seller” shall have the meaning
ascribed in the recitals to the Contract.
(mmm) “Seller
Taxes” shall mean (i) corporate and individual taxes that are measured
by net income or profit that are imposed by any governmental authority of any
country on the Seller, its employees, Subcontractors or Suppliers;
(ii) import duties imposed due to the execution of any agreement,
including the Contract, or the performance of, or payment for, Work under the
Contract; and (iii) all taxes, duties, fees, or other charges of any
nature (including, but not limited to, ad valorem, consumption, excise,
franchise, gross receipts, license, property, sales, stamp, storage, transfer, turnover,
use, or value-added taxes, and any and all items of withholding, deficiency,
penalty, addition to tax, interest, or assessment related thereto), that are
imposed by any governmental authority of any country, province or state on the
Seller or its employees, its Subcontractors or Suppliers due to the
manufacturing, shipment and/or transportation (if the Seller transports the
Equipment pursuant to Article 5) of any of the Equipment and/or Services.
(nnn) “Serial Defect” shall have the meaning ascribed in
Section 16.3.
(ooo) “Services” shall mean all of the services described in Attachment
2 hereto and more fully described in Appendix A.
45
(ppp) “Ship” or “Shipment” shall mean for items manufactured
(i) in the US and Canada, placing an item of Equipment at the disposal of
the Buyer at the Seller’s premises or another named place not cleared for
export and not loaded on any collecting vehicle, or for items manufactured
(Seller to provide custom’s clearance) or (ii) for outside of the US or
Canada, clearing an item of Equipment for import, not unloaded from any
arriving means of transport at the named place of destination.
(qqq) “Site” shall mean the location where the Equipment will be
installed or that Services will be provided.
(rrr) “Site Specific Loads Analysis” shall
mean the analysis conducted by the Seller to determine the adequacy of the wind
turbine as described in Attachment 2.
(sss) “Software” shall mean the Seller’s proprietary computer software
and software security devices provided by the Seller under Article 28.
(ttt) “Sound Level Guarantee” shall mean the
maximum sound power level emitted from a Unit as set forth in Appendix A.
(uuu) “Source Code” shall mean the human-readable version of a
software program that can be compiled, linked or interpreted into executable
versions of the Software together with reasonably detailed instructions
identifying the compilers, tools and methods necessary to successfully complete
such task.
(vvv) “Startup and Commissioning” shall mean the preparation of each
Unit for Commercial Operation as more fully described in Attachment 2
and Appendix A.
(www) “Subcontractor(s)”
shall mean any Person who supplies to the Seller or the Buyer (other than the
Seller), as applicable, labor or other services to be performed at the Site in
connection with this Contract.
(xxx) “Supplier(s)” shall mean any Person who supplies to the Seller
or the Buyer (other than the Seller), as applicable, material, equipment,
labor, goods, or services in connection with the Seller’s or the Buyer’s, as
applicable, obligations under this Contract, other than contracts for labor or
other services to be performed at the Site.
(yyy) “Support” shall have the meaning ascribed in Section 21.4.
(zzz) “Technical Advisory Services” shall mean the support provided by
the Seller during installation, startup and commissioning.
(aaaa) “Technical Specifications” shall mean the technical
specifications for the Equipment and Services, all as set forth in Appendix
A.
(bbbb) “Termination
Schedule” shall mean the schedule of termination charges set forth in Attachment
7 to the Contract.
(cccc) “Third Party Software” shall mean any proprietary computer
software owned by a third party that the Seller provides to the Buyer.
(dddd) “Transportation
Charge” shall have the meaning ascribed in Article 5.
(eeee) “Unit” shall mean a single wind turbine and its associated
generator, together with those accessories associated only with that turbine.
(ffff) “Unit Acceptance” shall mean that a Unit has been accepted in
accordance with Section 8.5.
46
(gggg) “Unit
Price” shall have the meaning ascribed in Section 11.1.
(hhhh) “Warranty
Period” shall have the meaning ascribed in Section 16.1.
(iiii) “Work” or “Scope of Work” shall
have the meaning ascribed in Section 2.1, as more fully described in Attachment 2.
47
Attachment 1
Description of Projects and Scheduled Major Component
Shipment Dates
Projects
Subject to Articles 3 and 4 of the Contract, all Project names, MW
sizes and general locations will be provided by the Buyer to the Seller in
writing no later than *** days prior to the first Scheduled Major Component
Shipment Date.
Shipments shall be made during fiscal weeks 8
through 44 of 2010. Units will be shipped at a rate of no less than *** and no
more than *** per week (with the exception of the last fiscal week of
Shipment). In the event that Buyer has concerns with the Scheduled Major
Component Shipment Dates, Seller will make a reasonable effort to accommodate
Buyer’s request. In the event that the Seller cannot accommodate such
request, the Scheduled Major Component
Shipment Dates herein shall apply.
48
Scheduled Major Component Shipment Dates
Fiscal Week
Schedule Major Component
Shipment Dates
Projects
Weekly Total
8
***
***
9
***
***
10
***
***
11
***
***
12
***
***
13
***
***
14
***
***
15
***
***
16
***
***
17
***
***
18
***
***
19
***
***
20
***
***
21
***
***
22
***
***
23
***
***
24
***
***
25
***
***
26
***
***
27
***
***
28
***
***
29
***
***
30
***
***
31
***
***
32
***
***
33
***
***
34
***
***
35
***
***
36
***
***
37
***
***
38
***
***
39
***
***
49
40
***
***
41
***
***
42
***
***
43
***
***
44
***
***
Site Data Requirements
Item
Required Date to be Provided to Seller
***
***
***
***
***
***
***
***
***
***
***
***
50
Attachment 2
Scope of Work and Options
Section 2A Scope of Work
General Description. The Equipment includes 333 model 1.5sle
wind turbines, each (as more fully defined in the Technical Specification) a
“Unit”.
The
Seller may update the Technical Specification to reflect product optimization
of the Units up to *** days before first unit Scheduled Major Component
Shipment Date. The sum of such Product optimizations for all Units will not
adversely affect the overall net
benefits to the Buyer with regard to Equipment, Equipment installation costs,
or Equipment performance.
Customer interfaces. Seller is developing technical enhancements
to the electrical and control system of the Unit that may be implemented prior
to Delivery. These enhancements require interface changes limited to foundation
stub-up conduit locations, pad mount transformer voltage, cabling, and SCADA
interfaces through OPC. The Seller has the obligation to notify the Buyer of
any interface change by *** (***) months prior to the first Scheduled Major
Equipment Shipment Date and to provide all required technical documentation.
Imported Equipment, Materials and Local Equipment. The Unit will be made up of both Imported
Equipment and Local Equipment.
51
TABLE 1: SCOPE
OF WORK, 1.5MW 80M HUB HEIGHT
In the event
the Buyer fails to confirm or amend the Scope of Work within the timeframe
specified in Table 1 and Table 1A below, the Scope of Work for the Project shall be as identified in Table 1 and Table
1A.
Transportation to the closest Common
Carrier Point to the Site
***
***
***
Additional Technical Advisor (TA)
***
***
***
Cold Weather Extreme(9)
***
***
***
Additional Corrosion Protection(10)
***
***
***
Enhanced Reactive Power Capability(11)
***
***
***
WindCONTROL (2)
Features:
Dynamic VAR Control
***
***
***
WindSCADA III (13)
***
***
***
Generator Alignment
***
***
***
Total Base Option Price
***
52
Table
1 and 1A Footnotes (additional detail provided in the Technical Specification):
1. Summary specifications
· Above 1000m elevation, the maximum operating
temperature is reduced per DIN IEC60034-1 (e.g., the maximum operating
temperature is reduced proportionally from 40ºC at 1000m or less, to 30ºC at
2000m).
· Corrosion protection per ISO 12944-2:
external components rated to C3; internal rated to C2.
2. GE monogram on nacelle excluded.
3. Seller Scope of Work does not include anchor bolt templates, anchor bolts, rigging
equipment, or lifting beam.
4. Blade sets in accordance with the Technical
Specification.
5. The Seller shall conduct one “Mechanical
Loads Review” per Project based
on the Buyer provided data. The Mechanical Loads Review shall be for the
specified project location where the Units will be installed. The Mechanical
Loads Review will determine the adequacy of the 1.5sle. Seller’s review will determine if the foregoing Scope
of Work is sufficient based on:
· Predicted fatigue loading
· Predicted maximum 3 second gust, 50 year
return period
· Number of days with temperature below –20º C
The
Buyer is responsible for assessing the nature of the conditions at the Site and
submitting the requested information in accordance with Attachment 1 Site Data
Requirements. A Site Specific Loads Analysis is to be carried out by the
Seller’s engineering team in accordance with established standards and
procedures applied in a non-discriminatory manner for each proposed wind farm
location. If the Scope of Work is not sufficient, one or more of the Options
described in the Schedule of Options may be recommended by the Seller. In some
cases (for example, extreme expected seismic loads), a specialized
configuration may be necessary that can delay the Scheduled Major Component
Shipment Dates and/or increase the Contract Price and/or the Purchase Order
Price. Such Site-specific risks are the
sole responsibility of the Buyer.
6. Zero volt ride-thru
7. Project Support Services include:
· Technical Advisory Services
at the project site during installation, Startup and Commissioning
· Site receiving supervision and inventory
control for the Seller’s Scope of Work
· Supervision of use of specialized
installation tools
· Commissioning of Turbines, WindSCADA, and
WindCONTROL
· Two full sets of operations and maintenance
manuals on CD
· The Project Support Services shall include a
staffing plan for each Project and a number of manweeks of service to be
provided for each Project, and shall be provided to the Buyer at least 120 days
in advance of the performance of the Work at the Site for the Project.
· The Project Support Services pricing included is based upon the
following assumptions:
53
· A minimum number of *** Units will be installed sequentially and
continuously per Site. For a smaller number of Units per Site, an additional charge will be
assessed based on the actual number of Units per Site.
· The rate of installation/commissioning will
be a minimum of *** Units per week
and a maximum of *** Units per
week, completed in consecutive weeks.
8. Reserved.
9. Maximum operating temperature is
reduced above 1000m elevation
10. Corrosion protection
per ISO 12944-2: external components rated to C5; internal rated to C4
11. Static power factor setting +/- 0.90 at 1.0pu
voltage (575V) and full power (1500kW) at the wind turbine generator terminals.
12. Supports
up to *** Units. Dynamic VAR Control can be operated in voltage mode or power
factor mode.
13. Purchase
of WindSCADA is required. The WindSCADA system includes a communication rack
that can support the required number of communication loops for windfarms, up
to *** Units.
WindSCADA-III is the WindSCADA-II system plus a full
feature set as described in the Technical Specification.
WindSCADA-II includes advanced user interface
screens for real time view of the wind park. It collects data for the whole
park and makes it available for both real-time and historical reporting. It
includes an SQL database that collects at least 12 months of operational data.
Additional detail is provided in the Technical Specification.
WindSCADA-I provides basic wind park operations and
control including a park wide overview with the ability to connect directly to
each turbine for details. Short-term turbine level operation history is
available (<14 days). Additional detail is provided in the Technical
Specification.
Section
2B Options
Subject
to availability, the Buyer shall have the option to purchase the following
items prior to the required order date and for the prices specified in Table 2
below. Equipment will be shipped configured per the Scope of Work (Table 1 and Table 1A) if options
are not elected in writing prior to the required order date. Any option
requested by Buyer after the required order date will require a Change Order pursuant to Article 13 of the Contract.
Support
for Site Specific Statement of Compliance for Design Assessment from
independent third party
***
***
***
Table
2 Footnotes:
(1) Requires the Dynamic VAR Control feature.
(2) Reference WindSCADA footnote 13 in Table 1 above.
(3) Feature which allows the Unit to operate up
to max temperature limits at altitudes greater than 1000m.
56
Attachment 3
Section 3A:
Payment Schedule
Payments
shall be made in accordance with the following schedule:
***
Transportation Payment Schedule
Event/Milestone
%
Cum %
***
***
***
Section 3B: Seller Payment Security
3B.1 If no written evidence from financier is
delivered then, Along with the Progress Payment invoiced 12 months prior to
first Scheduled Major Component Shipment Date , Buyer shall provide Seller
either (i) a parent company guarantee from an entity acceptable to Seller or
(ii) a Bank Guarantee from a North American or Western European bank with a
S&P rating of at least AA.. Such security shall cover the difference
between payments received and termination exposure effective until the
obligations set forth in Section 3B.2 below have been met. In addition if no
financing is in place, Buyer shall provide (i) or (ii) above from a) September30, 2008 through October 21, 2008 for 5% of the Contract Price, b) April, 25,
2009 through May 24, 2009 for 10% of the Contract Price c) May 25, 2009 through
November 20, 2009 for 20% of the Contract Price , d) November 21, 2009 through
December 20, 2009 for 30% of the Contract Price, e) December 21, 2009 through
January 18, 2010 for 60% of the Contract Price and f) January 19, 2010 until
financing is in place 40% of the Contract Price.
3B.2 No later than six months prior to the First
Scheduled Major Component Shipment Date, Buyer shall provide Seller with
written evidence, from its financier, that project financial closure has
occurred. Should written confirmation of project financing not be delivered to
Seller by that date, then Seller may require Buyer to provide payment security
in the form of one of the following: either
i. Bank Guarantee from a North American or
Western European bank with a S&P rating of at least AA in the amount of the
outstanding Contract balance effective until written notice of financial
closure is received by Seller or until 100% of Contract Price has been paid, or
57
ii. Revision to the Payment Schedule to reflect
payment of the full Contract Price before the First Scheduled Major Component
Shipment Date, or
iii. Another form of guarantee acceptable to
Seller
Refer
to Article 12 for further invoicing and payment details.
*
If any of the Progress Payments listed above would be due after the Shipment of
the first group of Units for the relevant Project, the Seller shall provide the
Buyer an invoice for the unpaid amount of such Progress Payments relating to
the Units for the relevant Project (a “True-Up Amount”) and the Buyer shall pay
such True-Up Amount on the same date the Buyer pays for such Shipment all in
accordance with Article 12 of the Contract. For the avoidance of doubt, the
True-Up Amount shall be the amount necessary to bring the total payments made
with respect to the Units for the relevant Project equal to 40% of the total
amount owed for such Units (excluding the payment due upon Shipment).
Attachment 4
Performance Schedule
The following table will be included in each
Purchase Order:
Milestones
Milestone Event
Milestone Date
***
***
***
***
***
***
***
***
***
***
***
***
Note:
The Parties acknowledge and agree that the Milestones Dates set forth for the
Milestones 1, 2 and 4 in this Attachment 4 are included solely for purposes of
Section 12.1 of the Contract.
58
Attachment 5
(Intentionally Left Blank)
Attachment 6
(Intentionally Left Blank)
59
Attachment 7
Termination Schedule
Months Prior to Scheduled Major Component
Shipment Dates
Termination Charge per Unit terminated
(percent of Unit price)